Report to the Commission on the Advancement of Federal Law Enforcement

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LAW ENFORCEMENT IN A NEW CENTURY AND A CHANGING WORLD

Improving the Administration of Federal law Enforcement

()F Criminal ,lustics HeierEmce Service (NC,JRS)

MD 2084%000 Report of the Commission on the Advancement of Federal law Enforcement COMMISSION ON THE ADVANCEMENT Of fEDERAl LAW ENfORCEMENT

January 2000

The Honorable Strom Thurmond President Pro Tempore United States Senate

The Honorable Tom Daschle Minority Leader United States Senate

The Honorable J. Dennis Hastert Speaker United States House of Representatives

The Honorable Richard Gephardt Minority Leader United States House of Representatives

The Honorable William Rehnquist Chief Justice of the United States

Gentlemen:

Public Law 104-132 (Antiterrorism and Effective Death Penalty Act of 1996) pro-

vided for the establishment of a Commission on the Advancement of Federal Law

Enforcement. The Commission, created as an independent advisory body, was asked

to report to Congress and the American People on a wide variety of matters related to

Federal law enforcement.

Section 806 of the legislation created this five-member Commission-one each to

be appointed by the President Pro Tempore and Minority Leader of the Senate; one each by the Speal

be appointed Chair by the Chief Justice of the United States.

In addition to authorizing the Commission to hold hearings in pursuit of its mandate, to sit and tal

States, the statute directed the Commission to submit a report to the Congress and the public within 2 years. I am pleased to submit that report.

I want to aclmowledge the diligence with which my colleagues on the Commis- sian pursued the complex and wide-ranging mandate incorporated into our statute.

The Commission took its responsibilities seriously, determined to be vigorous in its discussions, candid in sharing its views and opinions, and straightforward in its recommendations on what needs to be done. Although individual members sometimes emphasized different issues, the Commission was unanimous in supporting the broad themes and recommendations presented in this document.

I would also like to thank each of you for your confidence in the Commission's ability to complete this challenging assignment Your support helped the Commission complete its task on schedule. Finally, I would like to acknowledge the Commission staff-working under the able leadership of Executive Director Dr. Lee Colwell,

General Counsel Michael E. Shaheen Jr., and Director of Research Richard J. Fera- for their unfailing service.

Respectfully submitted,

William H. Webster Chairman MEMBERS OF THE COMMISSION ON THE ADVANCEMENT OF FEDERAl lAW ENFORCEMENT

William H. Webster, Chairman Senior Partner, Milbank, Tweed, Hadley & McCloy Washington, D.C.

~--Donald-C~Dahlini------Vice-f'residennor Academrc Affarrs University of South Dakota Vermillion, South Dakota

Gilbert G. Gallegos National President Fraternal Order of Police Albuquerque, New Mexico

Robert E. Sanders, Esq. Attorney Punta Gorda, Florida v

Robert M. Stewart Chief, South Carolina Law Enforcement Division (SLED) Columbia, South Carolina

Lee Colwell Executive Director

Michael E. Shaheen Jr. General Counsel

Richard J. Fera Director of Research

Carmelita R. Pratt Administrative Officer

Jacqueline A. Mitchell Executive Assistant CONTENTS

Executive Summary------1 Introduction ______15 Chapter One. A Large and Complex System ______27 Chapter Two. Coordination: Who's in Charge of What? ____ 45 Chapter Three. Terrorism 61 T Chapter Four. Globalization of Crime ______71 Chapter Five. Federalization of Crime ______87 Chapter Six. Professionalism, Integrity, and Accountability __ 95 Chapter Seven. Recommendations ______107 Endnotes 131 Selected Bibliography 143 vii Appendixes 159 Appendix A. Biographies of the Commissioners 160 Appendix B. Authorizing Legislation 164 Appendix C. Federal Organizations with Some Law Enforcement Functions ______168 Appendix D. Executive Order No. 11396 172 Appendix E. Commission Meetings and Witnesses 174 Appendix F. Expert Papers and Advisors 181 Appendix G. Personnel Authorized to Carry Firearms in 14 Federal Agencies ______183 Appendix H. Acknowledgments 184

~ tJ EXECUTIVE SUMMARY

its review of the data and testimony and its deliberations were com-

pleted, the Commission on the Advancement of Federal Law Enforcement reached broad agreement on several major themes and directions for the future. First and foremost, Commission members found that Federal law enforcement agencies are currently among the finest in the world_and_thaLmoslArnericans-Share-in-that-view•~.------

(The Commission defines Federal law enforcement as the entire range of activities and operations, at tl1e national level, that are intended to prevent crime, apprehend and prosecute offenders, 1 and maintain the country's corrections system.)

Second, Commission members believe that law enforcement stands at the thresh- 1 old of a new century and a changing world, and that, as the Nation moves into a new era, several challenges threaten its capacity to maintain and improve its system of

Federal law enforcement. These challenges are as follows:

1. Difficult coordination challenges. Within the spectrum of Federal agencies

involved in law enforcement, it is not always clear which organization has

responsibility for handling specific types of crimes. Managing diverse

agencies, their missions and priorities is a constant challenge. Although

many examples of excellent coordination exist across Federal agencies-and

among Federal, State, and local agencies-equally valid examples of poor

coordination are also easy to find. The United States lacks clearly articu

lated, easy-to-understand policies that dictate which agencies have responsi

bilities for which areas of criminal activity and how the many Federal agen

cies and officials with law enforcement responsibilities should coordinate

their activities. In addition, poor integration of domestic and foreign intelli-

gence capabilities limits effective law enforcement and is a menace to the

national interest. 2. Terrorism. The threat that the easy availability of weapons of mass destruc-

lion poses to American citizens is real. These devices-including conven-

tiona!, biological, chemical, and even nuclear weapons-have the potential to

enable individuals and groups to inflict the kind of damage on communities

and civilians that was once the exclusive power of nation-states. Although

incidents of terrorism have decreased in recent years, the lethal power of

these types of weapons leads to more casualties. Moreover, the purposes for

terrorist acts have changed. Historically, terrorists have sought political

attention and influence, and their acts resulted in few deaths. Today, the goal

of many terrorists is to kill large numbers of people.

3. Globalization of crime. Criminal enterprises in Asia, Europe, Latin

America, and the Former Soviet Union are an increasing threat to American

citizens and our national interests. Criminals are increasingly demonstrating

an ability to cooperate with each other across national borders in areas such

2 as narcotics and money-laundering. Their access to and skill in using advanced technologies often put U.S. law enforcement agencies at a disadvan

tage. Modern telecommunications and computers maim large-scale theft and

fraud possible through keyboards located anywhere in the world.

4. Federalization of crime. Over the years, the growth in the number of crimes

considered "Federal" is startling. In 1789, perhaps a dozen crimes were

considered sufficiently serious to warrant Federal attention; today that total

exceeds 3,000. Federalizing common crimes-crimes that historically were

the responsibility of State and local law enforcement agencies-has placed

U.S. society in danger of having Federal law enforcement resources spread

much too thinly. If the trend continues, the United States will develop the

type of national police force that we have traditionally avoided.

5. Maintaining professionalism and demonstrating accountability. As the

new century dawns, the challenge of maintaining public confidence in the

integrity and competence of Federal agencies is an urgent priority. The lack

of common standards that govern Federal law enforcement agency profes-

sionalism, integrity, and public accountability needs to be addressed. In addition, Federal law enforcement agencies must upgrade the technological

skills of officers, and the technologies available to them, if the officers are to

perfonn as effective law enforcement professionals in a new century.

POLICY CONClUSIONS

Based on its investigation, the Commission came to five broad policy conclusions about the performance of the Federal law enforcement system.

Conclusion 1. Coordination

Of necessity, the Federal law enforcement apparatus is large and complex; in the face of this complexity, the Government's capacifLfor oversight and coordinatiou_js______weak and needs improvement. In addition, the proliferation of small agencies should be discouraged and the function of Inspectors General reviewed.

Different agencies quite properly have different missions, as well as the need for quite distinct skills and areas of jurisdiction. Nonetheless, better coordination of operations 3 is necessary and desirable, and some consolidation of agencies is required.

Coordination among agencies (and with State and local law enforcement officials) has improved in recent years. Nevertheless, in significant areas such as terrorism, bombings, and complex transnational crime, jurisdictional confusion exists and needs to be addressed. With citizen safety and national security at stake, effective cooperation and greater clarity of roles and responsibilities should not be left to ch,mce. Moreover, despite the 30-year existence of Executive Order No. 11396, which designated the Attorney General as the focal point of Federal law enforcement, little has been done to implement the Executive Order.

The sheer number of small agencies presents a coordination challenge in itself.

Because of the complexity of agency missions and functions, the Federal Government has encouraged a proliferation of small Federal law enforcement agencies-many with their own investigative or policing powers and concepts of appropriate procedures and policies. A clear need also exists to examine coordination problems that stem from the

growth and role of the Inspector General (IG) function in agencies with law enforce

ment powers. This examination should consider the extent to which it is appropriate

for IG offices to combine program review functions for purposes of public account

ability (rarely a true Federal law enforcement issue) and internal affairs functions for

allegations of misconduct on the part of law enforcement officers.

Conclusion 2. Terrorism

Terrorism, domestic and foreign, threatens the Nation's security.

Keeping America secure in a new century will require additional resources and assets

for intelligence collection and analysis, long-term research on how to improve

domestic preparedness for terrorist threats, and an enhanced commitment from

Federal intelligence-gathering agencies (domestic and international) to share informa-

tion, as appropriate, with other Federal law enforcement agencies and with State and

4 local law enforcement officials.

Conclusion 3. Globalization of Crime

Transnational crime presents extraordinary new challenges to law enforcement at

all levels. Narcotics traffic/ring is a breeding ground for such crime.

The problem of confronting transnational crime is not a lack of laws at the Federal

level, but rather the explosive growth in global crime and the lack of focus on attack

ing global crime as a national priority. Effecting the existing policy commitment to

improve coordination among Federal, State, and local agencies to deal with global

crime is urgently needed.

Narcotics trafficldng, in particular-a breeding ground for international crime

and terror-is a problem that has the potential to destabilize U.S. allies and destroy

American communities. Despite a record number of seizures and a flood of legisla-

tion, the Commission is not aware of any evidence that the flow of narcotics into the

United States has been reduced. The Nation needs a multitiered approach to drug

trafficldng that is as sophisticated as the approaches employed by the cartels that control narcotics and incorporates both demand (domestic) and supply (international) policies and actions.

Conclusion 4. Federalization of Crime

Congress and the President are in danger offederalizing common crime.

Forty percent of Federal crimes have been put on the books since 1970. The enumeration of Federal crimes has grown from perhaps a dozen in the 18th century to more than 3,000 today.' Federal crimes now range from the heinous (treason and terrorism) to the absurd (disrupting rodeos'). This situation threatens to overwhelm

Federal law enforcement capacities, just as dramatic and serious new law enforcement challenges grow in intensity. Steps must be taken to repair the damage to the law enforcement community at the Federal, State, and local levels caused by federalization of common crime.

In this context, it appears to the Commission that the United States Criminal Code

(Title 18) has become too complex. Nearly 200 years of additions and revisions to 5 the Federal Criminal Code have created an unwieldy and complex body of Jaw, riddled with overlap, redundancy, inconsistencies, and unnecessary accretions.

Conclusion 5. Professionalism, Integrity, and Accountability

Agency professionalism, integrity, and accountability can be improved; policy and practice among agencies should be standardized to a greater degree.

Preserving agency integrity and professionalism requires constant vigilance. Public confidence in Federal Jaw enforcement can be enhanced by appropriate review. The

Commission believes that too often external review is haphazard and is frequently put in place after-the-fact, rather than before. Program accountability, personnel integrity, and professionalism can only be strengthened through greater engagement with the larger public and a clear commitment to review procedures that are fair, firm, and applied with consistency.

Training has not received the long-term commitment required. Although it is generally accepted that law enforcement training should be a high priority at the Federal level, no formal policy exists to ensure that adequate budget and personnel

resources are devoted to such an effort. Effective strategies for sharing experiences

on training matters among agencies, or for establishing minimum standards for

officer training, have yet to be developed.

It is also imperative that the Government develop standardized procedures and

operations in areas such as: classification and use of data; recruitment, selection, and

training; surveillance of citizens and issues of privacy; forensic laboratory manage-

ment; rules of engagement; and the use of force, including deadly force. Lack of

standardization in these areas compromises effective law enforcement

Continual upgrading of ti1e technologies and the technological skills of officers is

critical to ensuring agency professionalism. Support for the use of computers,

telecommunications, and other state-of-the-art technologies and equipment is uneven

across Federal agencies. Although some Federal law enforcement agencies can point to

state-of-the-art technologies and equipment, others labor with equipment and method

6 ologies that were out-of-date a decade ago.

RECOMMENDATIONS

In this report, the Commission presents a five-part action agenda that deals with the

concerns described above. Commission recommendations emphasize the need for tile

President and Congress to:

I. Make it clear that the Attorney General has broad coordinating authority for Federal law enforcement and for minimizing overlap and duplication.

We recommend that the President and Congress improve the administration of

Federal law enforcement, and its ~tfectiveness, by making it clear that the

Attorney General has broad authority for oversight and coordination and by

minimizing overlap and duplication of agency functions.

To accomplish this, the following actions are suggested:

A. Strengthen Executive Order No. 11396,4 updating it through presidential or

congressional action if necessary, to reflect the new global and national realities. Revise Executive Order No. 11396 to incorporate the kind of broad coordinating authority for the Attorney General that the Director of Central

Intelligence possesses with regard to intelligence matters under Executive

Order No. 12333. Executive Order No. 11396 should be reissued to ensure that the Attorney General becomes the focal point of Federal law enforce ment. This revised Executive Order should provide the Attorney General with explicit authority to:

• Act as the primary advisor to the President on law enforcement matters;

Develop and implement objectives and guidance for the law enforcement

community;

• Promote and ensure the development and maintenance of services of

common concern to Federal law enforcement agencies;

• Formulate and implement policies and procedures regarding law

enforcement;

• Ensure that the law enforcement community establishes common security 7

and access standards for managing and handling data and intelligence;

• Ensure that programs are developed to protect information, sources,

informants, methods, and analytical procedures;

• Establish appropriate staffs, committees, and other advisory groups to

assist in the execution of the responsibilities of the Attorney General;

• Monitor agency perfonnance and, as necessary, conduct program and

performance audits;

• Provide for policies that ensure uniform procedures for responding to

citizens' allegations of misconduct on the part of Federal law enforce-

ment agencies or officers;

• Reduce unnecessary overlap or duplication among agency programs and

missions; and

• Submit an annual report to Congress about accountability, citizens'

complaints, and their resolution. B. Transfer responsibility, authority, and personnel associated with enforcement

of firearms and explosives laws to the Federal Bureau of Investigation (FBI),

within the Department of Justice, leaving tax collection, licensing, and civil

regulation within the Department of the Treasury.

C. Transfer the Drug Enforcement Administration's budget, statutory authority,

and personnel to the FBI, creating it as a new separate division-'

D. Encourage the President and Congress to look toward a long-term solution

that would rationalize and realign Federal law enforcement and security

agencies in the Executive Branch into several broad functional areas:

• Criminal activity and national security;

• Protective and border security;

• Financial and regulatory enforcement;

• Corrections enforcement; and

• Natural resources enforcement. 8 E. Encourage the President to establish a permanent Interagency Advisory

Board on Federal Law Enforcement. This 19-member advisory board, made

up of representatives of the 14 major law enforcement agencies examined in

this report and five additional representatives from other Federal law enforce-

ment agencies, should be directed to provide the Attorney General with

advice in two areas: the needs of small agencies; and the growth and role of

the function of the Inspector General.

II. Provide the intelligence and information needed to combat terrorism.

We recommend that the law enforcement and intelligence commwzities review

their procedures and policies to ensure that the President, Congress, and the

National Security Council have adequate resources to coordinate activities and

to pursue the information that Federal, State, and local law enforcement agen-

cies need to combat terrorism. A. Provide adequate resources and assets for intelligence collection and analysis,

including efforts to:

• Upgrade the technological sophistication of law enforcement;

• Develop expertise in the cultures and languages of other nations;

• Strengthen cooperative relationships with other nations, including

extradition and mutual legal assistance treaties;

• Improve counterterrorism training for local agencies (the preferred "first

responders"); and

• Support long-term federally funded research on how to improve domestic

preparedness for terrorist threats,

B, Respond to the threat of cyberterrorism by implementing national security

policies to address the new realities of the Information Age, This response

should include:

• A policy review of coordination among law enforcement and intelligence 9 agencies with regard to information security and cybercrime;

• Plans to ensure that critical services such as national defense; emergency

services; defense readiness; law enforcement; air travel; and power,

water, and fuel distribution systems can be maintained secure! y against

threats from hackers and terrorists; and

• Work with the private sector to ensure that commercial telecommunica-

1=1 lions and information systems are secure from external attacks, 2

C Develop policies and procedures for collecting, disseminating, and sharing

data and intelligence through interconnected communications systems with

other Federal agencies and with State and local law enforcement officials,

D, Ensure that the legitimate needs of law enforcement agencies to override

encryption systems are balanced by judicial supervision to protect the privacy

and civil liberties of citizens, III. Make global crime a national law enforcement priority.

We recommend that the President and Congress expand the attack on global

crime, narcotics trqfficking, and cybercrime with llelV detennination and energy.

A. Implement the Administration's May 1998 International Crime Control

Strategy with respect to global crime.

B. Develop an integrated counternarcotics policy that can be incorporated

within the Nation's strategic planning and reinforce the Federal Government's efforts against international crime.

C. Cooperate with other nations in developing multilateral approaches to

attacking transnational organized crime.

D. Insist that the Department of Justice, the Department of State, CIA, and other

law enforcement and intelligence agencies coordinate their capabilities and

activities across agencies so that each draws on the expertise of the other in

the most effective way. 10 E. Expand research on, and upgrade technologies to combat, transnational

crime.

IV. Reverse the trend toward federalization.

We recommend that Congress and the President enact a new "Federalization

Prevention Act" to minimize Federal intrusion into State and local law enforce-

ment and reverse the recent trend toward "federalizing crime."

A. Enact a new "Federalization Prevention Act" that requires the Congress and

the Executive Branch to provide a "law enforcement impact statement"-in

addition to the existing budget impact statement-on all Jaw enforcement

legislation.

B. As part of the new act, conduct a review of the Federal Criminal Code (Title

18) over a 5-year period by a fully staffed, full-time, nonpartisan expert

commission that is directed to recommend changes in Title 18 to Congress and the President. C. The new act should also contain a sunset provision, a requirement that new

provisions that define crimes as Federal expire after 5 years unless Congress

acts to extend the definition.

V. Focus on professionalism, integrity, and accountability.

We recommend that the President and Congress insist that Federal law enforce-

ment agencies establish new standards for professionalism, integrity, and public

accountability.

A. The Attorney General, worldng with the Interagency Advisory Board, identi-

fied in Recommendation 1-E, should be directed to accelerate the process of

standardizing procedures and operations, including the development of

common standards in areas such as investigative guidelines, recruitment,

training, classification and use of data, rules of engagement, and the use of

force, including deadly force. 11 B. Policy and training regarding the use of deadly force should be standardized

across all Federal agencies.

1. The wording of Federal law enforcement policies regarding the use of

deadly force should be identical, providing the same policy and guidance

to law enforcement officials in all Federal agencies.

2. Variations in policy statements should relate to unique agency require

ments only (e.g., the use of warning shots on open water).

3. Training on the use of deadly force should be standardized across Federal

agencies.

4. Annually mandated continuing education courses on the use of deadly

force should be required for all Federal law enforcement officers and

should be differentiated from firearms requalification training.

C. Congress should promote professionalism and enhanced accountability by:

I. Requiring that the curriculum governing training in core law enforcement

functions (e.g., constitutional rights, use of force, and protection of crime scenes) be standardized across all Federal agencies while it is simulta-

neously supplemented by discrete training in agency-specific issues;

2. Creating a Federal Law Enforcement Officer Training Board (made up of

law enforcement experts from Federal, State, and local agencies, along

with academics and private training specialists) to review training, certify

the adequacy of both basic and in-service training programs; identify

innovative training programs and curricula; and recommend needed

additional training programs to agencies;

3. Requiring Federal law enforcement agencies to periodically undergo

accreditation by outside agencies. Every Federal crime laboratory should

also seek accreditation as a matter of course;

4. Requiring the development of standardized procedures for responding to

citizens' complaints about Federal law enforcement agencies and offic

ers-e.g., all complaints will be recorded; all will be investigated as

12 appropriate; due process will be provided for officers; records and results

of such investigations may be made public; and results should be pro-

vided to officers under investigation; and

5. Conducting vigorous oversight to ensure that the Attorney General

develops and implements the policies called for in Recommendation!

A-policies defining procedures for resolving citizens' complaints about

Federal law enforcement agencies and officers.

D. Bring Federal law enforcement into the 21" century with support for the

acquisition of the latest computers and telecommunications technologies, and

crime-fighting equipment. The Attorney General should work with the new

Interagency Advisory Board on Federal Law Enforcement to ensure a high

level of ongoing support for providing, maintaining, and updating computers

and telecommunications equipment.

E. The Attorney General should also be authorized by Congress to build on

recent progress in advancing analyses of DNA and trace evidence by support-

ing an ongoing national conference, workshop, or seminar on forensic science. F. The President and Congress should require the Office of Personnel Manage-

ment (OPM) to work with the Attorney General, the President's chief law

enforcement advisor, to examine the need for personnel system refonns for all

Federal Jaw enforcement agencies, including minimum standards for recruit-

ment, training, promotion, salary and benefits, and other scope of employment

issues.

G. Annual budgets should provide a line item for each law enforcement agency

and the President and Congress should ensure that each such agency is led by

an experienced public manager, preferably with experience in law enforcement.

TOWARD A NEW CENTURY AND A CHANGING WORLD

This Commission believes that the Nation will face grave Jaw enforcement challenges in the years ahead. Its five-part action agenda is designed to address those chal lenges. Members of the Commission believe that the public understands the need for these actions and will support policymakers as they work to put them in place. The 13 Commission urges the Congress and the President to move forward with this agenda. INTRODUCTION

Jabal crime, cybercrime, and terrorism in new and evermore dangerous forms

will threaten tl1e safety of Americans and the security of the United States in the next century. The Nation should move now on an urgent basis to prepare to detect these criminal activities at the source, counter them in all appropriate ways, and protect Americans to every extent possible.

Globalized crime !mows no borders; it can undermine business competition, corrode economies, and destabilize political systems. Cybercrime can assault any country's physical and information infrastructure. Terrmists can kill and destroy for maximum effect. In addition, increasingly sophisticated drug trafficking uses advanced information and telecommunications technologies to import and disl!ibute 15 illegal drugs witl1out detection.

Each day, Federal Jaw enforcement is confronted with tl1ese emerging forms of international crime, undertal,en by individuals who operate from nearly every corner of the globe and employ the latest in computer and telecommunication technologies to achieve their ends. As Federal law enforcement becomes internationalized, it enters a new arena where problems in coordination and operations are likely to be more pronounced. The potential victims of international crime, cybercrime, and terrorism are not only individual citizens, but also the country's institutions and its national security apparatus.

The Federal Jaw enforcement community is structured to cope with the crimes of the past, not the emerging crimes of the future. A vast Federal Jaw enforcement establishment has been built up over many years, but it is unwieldy, not adequately prepared to meet the rising threats, and-most of all-not sufficiently marshalled or coordinated. Serious questions arise about who is in charge of what in Federal law enforcement. At critical moments, such as Waco and Ruby Ridge, how these ques- lions are answered becomes a matter of life and death. Furthermore, the proliferation

of crimes that have been federalized burdens Federal law enforcement with tasks they

do not want or need and are not equipped to carry out.

The Federal law enforcement establishment must be made ready to meet its

challenges in the new century.

REFORMS ARE NEEDED IN SIX MAJOR AREAS

To sharpen the ability of Federal law enforcement to deal with these emerging crimes,

in addition to its ongoing responsibilities, reforms are needed in six major areas to:

• Combat global crime, cybercrime, and terrorism;

• Make it clear that the Attorney General has broad coordinating authority for

Federal law enforcement, and minimize overlap and duplication;

• Provide the intelligence and information needed to combat terrorism;

• Mal(e global crime a national law enforcement priority; 16 • Reverse the trend toward federalization; and

• Focus on professionalism, integrity, and accountability.

A central executive should coordinate Federal law enforcement activities, and

that executive should be the Attorney General. Cooperation with State and local law

enforcement agencies must be greatly improved, and overseeing that task should also

fall to the Attorney General.

Timely use of intelligence and other information is critical to contemporary law

enforcement, and not just within the Federal law enforcement establishment. State

and local law enforcement agencies must receive far better intelligence and other

information if they are to do their part.

At the structural level, to deal better with global crime, drug enforcement activi-

ties should be centralized within one agency of the U.S. Department of Justice, and

that agency should be the Federal Bureau of Investigation. Thus, most activities of

the current Drug Enforcement Administration should be transferred to the FBI. Similarly, the law enforcement responsibilities of the Bureau of Alcohol, To-

bacco, and Firearms should be transferred out of that organization and into the

Department of Justice, namely, the FBI, where these responsibilities are more compat-

ible with the overall FBI mandate. The remaining regulatory functions of ATF should

remain within that agency in the U.S. Department of the Treasury.

In addition, the trend toward federalization of crime must be slowed and, where

appropriate, reversed. Acting with understandable concern for American citizens, and

with understandable desire to deploy the vast Federal law enforcement establishment

on their behalf, Congress has now created more than 3,000 Federal crimes, many of

which intrude deeply into areas far better left to the States. Common crime, the kind

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business person in the office, is still overwhelmingly a State and local matter, and

should be left to the capable law enforcement agencies at those levels. Federalization

is not a new issue, but it is an important one and should be addressed promptly.

Finally, accountability, integrity, and professionalism in Federal law enforcement 17

must be significantly improved. Policy standardization in Federal law enforcement

should become a goal of all appropriate agencies. Policies on such critical subjects as

the use of deadly force should be standardized, so that training of Federal officers

from different agencies can become more uniform and these offices can better work

together.

REPORT OF THE COMMISSION

These findings, conclusions, and recommendations constitute, in brief, the report of

the Commission on Advancement of Federal Law Enforcement. For the first time in

recent history, a Congressional Commission has set out to study the integration of

widely disparate and often conflicting issues to strengthen the law enforcement fabric

of the Federal Government while protecting democracy and the rights and liberties of

individual citizens.

The Commission saw its role as calling the Nation's attention to the broadest

concerns in national and international law enforcement. It also urges the Nation and its Federal law enforcement establishment to break down the barriers of institutional

thinking and find new ways to approach the challenges of crime in the new century.

In creating the Commission, Congress issued a broad mandate of issues for study.

From the outset, the Commission determined that conducting an in-depth study of

Federal law enforcement, with all of its complexities, was impossible within the

mandated reporting period. Thus, it decided to synthesize the main issues that will

distinguish law enforcement in the next century from law enforcement today.

In summary, global crime, cybercrime, and terrorism pose the new, emerging

security threats to the Nation and challenge the Federal law enforcement community.

This report is a call for an open mind, for a rethinldng of current law enforcement

approaches, for a willingness to move forward so that Federal law enforcement can

safeguard the Nation's citizens and protect the Nation's security in the years to come.

COMMISSION MANDATE

18 Section 806 of Public Law 104-132 (Antiterrorism and Effective Death Penalty Act

of 1996) provided for the establishment of a five-member Commission on the Ad-

vancement of Federal Law Enforcement and mandated that the Commission report its

findings to Congress and the general public within 2 years.

CHARTER

The Commission charter directed it to examine 10 factors related to Federal law

enforcement:

• Federal law enforcement priorities for the 21st century, including capabilities

to investigate and deter terrorism;

• The manner in which significant Federal criminal law enforcement activities

have been conceived, planned, coordinated, and executed;

• Standards and procedures of Federal law enforcement, including their

uniformity and compatibility;

• The investigation and handling of specific Federal criminal law enforcement

cases, selected at the Commission's discretion; • The need for the current number of Federal law enforcement agencies and

units;

• The location and efficacy of the office with direct responsibility for inter-

agency coordination-aside from the President of the United States;

• The degree of assistance, training, education, and other human resource

management assets devoted to enhancing professionalism;

• The existence and efficiency of independent accountability procedures;

• Coordination among law enforcement agencies with regard to international

crime; and

• Coordination of Federal law enforcement activities with those of State and

local enforcement agencies.

An additional charge in Section 806 authorized the Commission to examine any other matters it considered appropriate.

COMMISSION ACTIVITIES 19

The Commission wrestled with its complex and sweeping mandate throughout its tenure, ever mindful that its deliberations were taking place in the shadow of the five recent major events that involved Jaw enforcement-the bombings of American embassies in Kenya and Tanzania; the bombing of the World Trade Center in New

York; the destruction of the Alfred P. Murrah Federal Office Building in Oldahoma

City; the deadly inferno that ended the confrontation with Branch Davidians in Waco,

Texas; and the tragic standoff at Ruby Ridge, Idaho. The specifics of the

Commission's charge, and the larger issues in which they are embedded-issues of personal safety and security, freedom from unreasonable search and seizure, and protection against domestic and foreign terrorism-affect every man, woman, and child in the United States. (See box, page 20-21.)

Over its 2-year tenure, the Commission met more than 20 times and took verbal and sometimes written testimony from some 70 witnesses, including two members of

President Clinton's Cabinet and numerous presidential appointees. Its work was also informed through several other sources of data. For example, at the direction of the Federal Law Enforcement in Eight Prominent Law Enforcement Events

Event &Year General Description.and Disposition

Pan Am On December 2.1 ,1988, a Pan American jet bound from London to New York exploded Flight 103 over Lockerbie, Scotland, killing all 259 people on board and 11 more on the ground. (1988) British Investigators shortly reported that a bomb in the luggage compartment caused the crash. Nearly 3 years later the United States and Britain announced criminal charges against two Libyan intelligence officers for the bombing and suggested Libyan leader Moammar Gadhafi was involved as well.' Various investigations and court cases concluded that "seriously flawed" aviation security systems in Europe and ''willful miscon ducf' by Pan Am in airport security contributed to the disaster. In April1999, the two Libyan suspects were turned overto Scottish authorities for trial before a Scottish court convened in. the Netherlands.

Ruby Ridge Randy Weaver, who had turned down an offer to become an ATF informant in the late (1992) 1980s, was subsequently cited for weapons violations and announced he would never show up In court. An arrest warrant was Issued and surveillance of his rural Idaho home began. In August 1992, a shoot-out developed involving U.S. Marshals and Weaver's 14-year-old son Sammy and a friend, Kevin Harris. Sammy's dog was killed, Sammy died, and a U.S. Marshal was killed by a shot from Harris. An FBI hostage rescue team arrived. (The orders and rules of engagement are the subject of intense dispute In the ongoing litigation that has resulted from this matter.) During the confrontation that ensued,. Randy Weaver was shot: he survived. (What Weaver was doing while he was shot is also the subject of dispute in the case.) An FBI agent shot at one of three armed individuals who had emerged from the Weaver cabin. His shot penetrated the cabin door and hitWeaver's infant and wife, Vicki, who, unbeknownst to the agent, was standing 20 behind the door. Both were killed. (There is vigorous dispute as to whether she was holding her infant at the time she was killed.) Subsequently, 12 FBI agents, none of them members of the hostage rescue team, were disciplined. The Department of Justice paid $3.1 million to the Weaver family. FBI Director Freeh admitted that certain mistakes had been made. The head of the FBI's violent crimes section pleaded guilty to obstruction of justice in destroying an official document. (He admitted destroying an after-action report that assessed the situation at Ruby Ridge.) An Idaho jury acquitted Weaver of murder and conspiracy, but Weaver served 1 year in jail on the original charges. Ongoing internal investigations clearly indicate that the Ruby Ridge confrontation raised a host of law enforcement issues that have yet to be resolved.

World Trade On February 26, 1993, a rented Ford Econollne van packed with explosives detonated Center (1993) in the parking garage beneath the World Trade Center in New York killing six, injuring more than 1 ,000 and leaving a 1 00-by-1 00-foot crater in the garage. A massive investigation involving the FBI, ATF, and the New York City Police was launched immedi ately. Within 6 days, investigators took into custody a Muslim fundamentalist, Mohammed Salameh, who came to their attention because he insisted on demanding a refund for the Ford Econoline van, which he had rented In New Jersey and claimed had been stolen. In March, five additional suspects were charged; in June another eight were arrested, all apparently part of a fundamentalist conspiracy involved with the World Trade Center or plans to bomb the United Nations and Manhattan commuter tunnels. In July, Sheik Omar Abdel Rahman, thought to be the mastermind behind these plans, was arrested. Subse quently, four Arab defendants were convicted for the World Trade Center bombing; a fifth pled guilty to a bombing conspiracy and agreed to testify against the others; Sheik Rahman and nine of his followers were convicted in October 1995 of plotting bombings and other acts of terror.

Waco (1993) ·On February 28, 1993, the Bureau of Alcohol, Tobacco, and Firearms (ATF) made an unsuccessfUl attempt to execute an arrest warrant for the leader of the Branch Davidians, David Koresh, related to violations of Federal firearms laws and a search warrant for.the Davidian compound at Mount Carmel, outside Waco, Texas. A massive firefight ensued, during which tour ATF agents and six Davidians were kHied. The Davidians barricaded themselves Inside the compound, and the FBI assumed control of the scene. On April 1 9, 1 993, following a 51 -day standoff that included constant attempts to negotiate the surrender of the Davidians, the FBI inserted tear gas into the compound to force the Davidians' exit out of the compound. A fire began and quickly engulfed the. entire building. Although 9 adult Davidians escaped the blaze, 86 others died within the compound, including Koresh. Five of the surviving Davidians were convicted of the voluntary manslaughter of the four ATF agents, and violations of Federal firearms laws; two others were convicted solely on firearms charges. Following this event, t.he FBI overhauled its procedures for such crises by forming the CriticE!I Incident Response Group (CIRG), which integrates FBI hostage negotiation functions with. its capacity loran immedi ate and. decisive hostage rescue response.

Okfahoma On April 19, 1995, a powerful, sophisticated homemade bomb, hidden in a truck, City (1995) was detonated outside the Alfred P. Murrah Federal Office Building, killing. 168 people, including children in a daycare center. McVeigh, a Gulf War veteran and antigovernment activist, was arrested within hours for driving an automobile without a licens~ plate. While in custody,.Jocal police noted his .resemblance to the .police sketch of a suspect in ------:--~~urral:!-lnvestigation...Shertly,lHtimed-otiHIJal. t11e 1entahrocK used 1n the bombing ... I had been rented by McVeigh. Subsequently: McVeigh was convicted inFederal court on : 11 counts of planning and carrying out the bombing; he was sentenced to death.ln August 1997. Nichols was convicted of conspiracy and !~voluntary manslaughter by a Federal jury and sentenced to life in prison, without parole. In March 1999, the Okla homa County District Attorney charged Nichols with.163 State counts of murder and conspiracy, opening up the possibility that Nichols could yet be sentenced to death:

Unabomber The FBI arrested Theodore Kaczynski at his cabin In Montana in 1996 (based on a (1996) tip from his brother), thus ending an 18-year manhunt for the notorious "Unabomb~r," a 21 serial murderer responsible for killing three people and injuring 23 with homemade bombs distributed through the mail. A task force involving the FBI, the Office of the Postal Inspector, and ATF spent more than $50 million tracking Kaczynski over the Y.ears. Subse~ quently, in a 1998 plea bargain, Kaczynski pled guiltyto three murders; spwed the death penalty, he was sentenced to four life sentences, plus 30 years in prison.

Montana In June 1996, following an 81 -day standoff, 14 "Free.men" surrendered to the FBI Freemen after the. agency cut off electricity to the ranch where they had holed up since March.. (1996) The Freemen had refused to pay mortgages, taxes, or any government levi~s since the 1 980s. FBI Director Louis J. Freeh described the agency's new policy for dealing with such volatile confrontations as "patience and fortitude." Subsequently, there were 21 convictions involving at least 3 members of the Montana Freemen on numerous offenses including conspiracy, bank fraud, and threatening a Federal judge. ·

Atlanta On July 27, 1996, security guard Richard Jewell noticed a suspicious knapsack in Centennial Centennial Olympic Park. Before it could be removed, the knapsack exploded; Park (1996) killing one woman, injuring more than1 DO people, and leading to the he

Sources: Public documents and accounts collected in Commission Background Material Books numbered '128 'through 132. Commissioners, staff-with assistance from the survey research firm, QS&A Re-

search-conducted a nationwide public opinion survey. In addition, more than 140

leaders of Federal agencies with responsibilities in some facet of law enforcement

were asked to respond to a 31-question survey prepared and administered by Com-

mission staff. From the 37 completed survey responses received, staff prepared a

detailed analysis of data from the 14 agencies considered to be the primary Federal

law enforcement entities.

In the main, the Commission's interest focused on agencies that employ "1811

series" employees-and other personnel with the authority to investigate, carry

firearms, and make arrests.' Even this more limited definition of the Commission's

task describes a formidable law enforcement apparatus, totaling in the aggregate some

88,747 sworn officers with combined annual budgets of more than $6.8 billion.'

In addition, Commission staff conducted an extensive review of the literature on

law enforcement, Federal law enforcement, and the administration of justice. Finally,

22 the Commission contracted for papers on specific issues-such as terrorism,

transnational crime, narcotics trafficking, and the nature and origins of Federal law

enforcement in the United States-from the academic community. This combination

of surveys, literature review, and academic papers represents one of the most extensive

examinations of Federal law enforcement in recent history.

BACKGROUND

The connection of the work of the Commission on the Advancement of Federal Law

Enforcement to the well-being of the American people is direct and simple.

The initial concept for the Commission was developed following the disasters at

the Branch Davidian Compound and Ruby Ridge-events that raised serious ques-

tions about the quality of Federal law enforcement.

The interests that motivated policymakers to launch the Commission's study

varied, sometimes quite dramatically. Some policymakers wondered about the

Federal Government's capacity to protect American citizens from foreign terrorists

acting on U.S. shores. Others were concerned that policy on essential aspects of law enforcement, such as the use of deadly force, was either unclear or ignored, a situa-

tion fraught with peril for citizens and officers alike. Still others worried that too

many Federal law enforcement entities had been created, making coordination among

them, and witl1 State and local law enforcement agencies, difficult, if not impossible.

Almost certainly, just as many people were intent on using the two tragic incidents

listed above, to criticize Federal law enforcement as were committed to examining

any mistal

All in all, the range of views that accompanied the initial conceptions of the

Commission were disparate. Some were perceived-fairly or unfairly- as charged

with ideological overtones from all sides of the political spectrum. As a consequence,

··-··--when-Sectiorril06-was-11nally enacted, mJ!Jal plans for the Commission's budget and

term of office were cut back. Montl1s passed before an appropriation for the

Commission's work was enacted and almost 2 years went by before the full, five-

member complement of Commissioners was appointed.

In the years that intervened between the initial conception of the Commission and 23

its authorization, funding, and creation, the United States passed a lethal watershed,

witnessing one of the most brutal terrorist acts ever carried out on American soil-the

destruction of tl1e Alfred P. Murrah Federal Office Building in Oldahoma City. In

April 1995, two Americans, Timotlw McVeigh and Teny Nichols conspired to

detonate a powerful and sophisticated homemade bomb hidden in a truck parked

outside the building. Their bomb killed 168 people, including children in a daycare

center.

Rapid police communication led to the holding of McVeigh, who had been

apprehended immediately after tl1e bombing on an unrelated traffic offense. Effective

law enforcement agency coordination led to a powerful prosecution tl1at resulted in

the conviction of the two primary culprits. During the course of that investigation,

however, the climate under which the Commission's mandate was framed changed

dramatically.

Federal agencies, fairly or unfairly, derided for poor performance at Ruby Ridge

and Waco, were perceived to have performed with praiseworthy professionalism in Oklahoma City. Within minutes of the explosion, the building and the surrounding

crime scene were secured. Within hours, a sketch of a suspect (drawn with sufficient

accuracy to alert the local police officers who had arrested McVeigh) was in the

hands of police forces around the country. Within a day, a vehicle identification

number attached to a bit of a truck axle discovered a block from the explosion, led

investigators to a local truck rental agency. And, within a week, a fairly complete

picture of the recent comings and goings of Me Veigh and Nichols was available-a

picture tying McVeigh irrevocably to the barbarous act and to his jail cell. The

Federal law enforcement system, illuminated in the glare of intense international

publicity, had carried out its functions responsibly, professionally, credibly, and well.

The success of investigators and other law enforcement personnel in apprehend

ing and developing evidence against Me Veigh and Nichols transformed public

perceptions of Federal law enforcement and the perceived role for the Commission.

Instead of serving as a vehicle for criticizing Federal law enforcement agencies, the

24 Commission was now encouraged to examine strengths and weaknesses. The Commission's mandate, broad as it was, laid out the possibility of an investigation

that recognizes that perfect performance, however much desired, is also well-nigh

impossible. The specifics of the Commission's charge and the larger issues in which

they are embedded-issues of personal safety, freedom from unreasonable search and

seizure, and protection against the threat of domestic and foreign terrorism-are

compelling as law enforcement enters a new century and a changing world.

CENTRAL CONCLUSIONS

Because of the complexity of its charge, this Commission does not want its central

conclusions obscured by the amount of detail in the document that follows. Based on

a study that involved approximately 70 witnesses, a comprehensive literature review,

and a review of papers and surveys commissioned for its use, the Commission wishes

to state its conclusions as directly and simply as possible. It believes that:

Federal law enforcement agencies are among the finest in the world and that

most Americans share that view. • Of necessity, the Federal law enforcement apparatus is large and complex.

Different agencies have different missions and quite distinct areas of jurisdic-

tion. Better coordination is necessary and desirable, and some consolidation

is required.

• The capacity for oversight and coordination is weak and needs improvement.

As a policy matter, it is difficult to !mow who is in charge of what. With

issues of citizen safety and national security at stake, effective cooperation,

greater clarity of roles and responsibilities, and agreement on uniform stan-

dards should not be left to chance.

Law enforcement officers will confront vastly more sophisticated and com

------niex-crimes-itnlmLlst cenllll)'tnan ever Before. I he Federal law enlorce

ment community must prepare for this new reality.

TI1e remainder of this document expands and explains these views.

25 CHAPTER ONE. A lARGE AND COMPlEX SYSTEM

nowing full well that, in the words of James Madison, "nothing human can be

its Bill of Rights as the most nearly perfect solution ever devised for aligning the relationship between free citizens and the state. The Founding Fathers, asserting a claim to freedom and independence on the basis of certain "self-evident" truths, sought to bring into being, not simply a new Nation, but also a remarkable new experiment in what George Washington, like the Anglo-Irish parliamentarian Edmund

Burke, thought of as "ordered liberty." In this ideal experiment, individual freedom 27 and liberty would be accompanied and protected by a level of order and decency that served the common good.

Despite the many times the United States has fallen short of that ideal, permitting rights guaranteed under the Constitution to be overridden or ignored, the Constitution and its Bill of Rights (see sidebar, page 28) remain brilliant public inventions. They illuminate much of what is distinctive in American life, provide realistic and appeal- ing alternatives to totalitarianism and repression around the world, and define the limits of police powers in a modern state.

The Bill of Rights enshrined essential principles in the United States Constitu tion: freedom of religion, assembly, and speech; freedom from unreasonable search and seizure; the right to due process and to a speedy and public trial by jury; prohibi- tions against excessive bail and cruel and unusual punishment; and reservation of rights not delegated to the United States to the States and to the people.

These rights are as much a strategic insurance policy as they are a statement of principle. Early Americans, led by George Mason, demanded this statement of rights because they knew firsthand what it was to be subjects of a state that routinely THE BILL OF RIGHTS

The first 10 amendments to the Constitution, ratified by the States on December 15, 1791, are universally known as "The Bill of Rights." . These amendments were developed after George Mason, author of the Virginia Declaration of Rights, left the Constitutional Convention a vocal opponent of the new Constitution because, "It has no declaration of rights." Mason's views prevailed when James Madison drafted these amendments. Amendment I. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peace ably to assemble, and to petition the Government for a redress of grievances. Amendment 11. A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. Amendment Ill. No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor In time of war, but in a manner to be prescribed by law. Amendment IV. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. Amendment V. No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be. twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. Amendment VI. In all criminal prosecutions, the accused shall enjoy the right to a speedy and public 28 trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have. been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense. Amendment VII. In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law. Amendment VIII. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments Inflicted. Amendment IX•. The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. Amendment X. The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

violated their rights-compelled religious belief, proscribed speech, or permitted

warrantless entries and searches of homes. Against that history, early Americans

understood that the only way to protect their own rights was to protect the rights of

every other citizen as well, because a constitutional solution applied to every citizen.

A FINE BALANCE

Americans have always had an ambivalent relationship with their national govern

ment-eager for its benefits and protection, but wary of its scope and reach. No- where is this ambivalence more apparent than in the field of law enforcement. As

Frederick S. Calhoun, former historian of and currently an operational research analyst at the U.S. Marshals Service, wrote in a paper prepared for tl1e Service:9

The triangular relationship between the individual citizen, the State, and the

Federal Government provides the best standard to gauge tile reach of Federal

power. The Federal Government has always had a rather precisely defined role

in American society, jealously protected by the carefully balanced distribution of

power among its three branches and further delimited by the powers reserved to

the States and, ultimately, to the people. In tile original conception of the Federal

system, the States carried more weight than the National Government. All

powers not explicitly granted the Federal Government by_tile_Constitutlou ______

remained resident in tl1e States [and in the people].

The fine balance described by Calhoun was once defined more pithily by

Abraham Lincoln: "It has long been a grave question whether any government, not too strong for the liberties of its people, can be strong enough to maintain its exist- 29 ence in great emergencies."'" Although Lincoln framed his "grave question" in the context of the great emergency of 19th century America, it is equally relevant in the context of the great law enforcement challenges that face the United States as it enters the 21st century-global crime and international terrorism.

Contemporary public opinion about this triangular relationship was demonstrated quite clearly in a telephone survey of 805 Americans conducted for the Commission in February 1999 QS&A Research and Strategy." According to the findings:

• Respondents are more likely to report "a great deal of confidence" or "quite a

lot of confidence" in local (60 percent) and State (66 percent) law enforce-

ment agencies than in their Federal counterparts (50 percent).

• Confidence in major Federal agencies compares favorably with confidence in

State and local agencies. The Federal Bureau of Investigation and tl1e U.S.

Secret Service receive very high marks, 59 percent and 55 percent, respec

tively. Two other Federal law enforcement entities, the National Park Service

and the U.S. Forest Service, each received identical confidence level ratings

of 62 percent. • The low confidence levels associated with agencies such as the Bureau of

Indian Affairs (23 percent), the Irrunigration and Naturalization Service (28

percent), the Internal Revenue Service (29 percent), the Bureau of Prisons (30

percent), and the Bureau of Land Management (31 percent) appreciably lower

the overall assessment of confidence in Federal agencies.

People are more concerned about violent crime, violent crimes involving

juveniles, the sale of illegal drugs (and the violence accompanying the drug

trade), and corrupt public officials than they are crimes against property, or

violations of immigration, or environmental laws-essentially crimes against

society in general.

• Computer crime and white-collar fraud elicit almost as much public concern

as crnjacking and organized crime, with approximately half of all respondents

citing high levels of concern about all four issues.

• In general, respondents believe that Federal law enforcement agencies are

30 best equipped to deal with crimes of a "national" nature-acts of terrorism;

computer crime; violations of immigration law; corrupt politicians, judges,

and Government officials; and organized crime.

• In a similar vein, the public believes that local police and, to a lesser extent,

State police are better equipped to deal with local crime, including crimes

against property and most violence-street crime, juvenile violent crimes,

crnjacking, drive-by shootings, possession of handguns by juveniles, and use of

a gun to kill another person.

There is much to celebrate in these findings. A solid majority of the public

surveyed appears to hold the most prominent Federal law enforcement agencies-the

Federal Bureau of Investigation and the Secret Service-in high regard. To the extent

people in certain regions are troubled by Federal agencies, their concern appears

focused on those with unpopular mandates and regulations to enforce-the Bureau of

Indian Affairs, the Irrunigration and Naturalization Service, and the Internal Revenue

Service. Moreover, the general public appears to have a pretty clear picture in its head as

to the appropriate jurisdiction for Federal law enforcement on one hand, and State

and local law enforcement on the otl1er: Federal agencies should concentrate on

interstate and intemational criminal activities, leaving most violent crime and crimes

against property to local law enforcement officers.

Survey findings indicate that most respondents believe that Federal law enforce

ment is doing well, and that Federal law enforcement officers are well trained and

highly professional. It also concluded tlmt the public believes Federal officers are

doing a good job solving crimes, apprehending criminals, and protecting law-abiding

citizens. In brief, on most major areas of assessment, the public's perceptions are

...... --relati.vel:)'-p<:>siti.v@-flnd-highly-eneeuraging·~.------

Still, these generally positive findings must be balanced against some negative

and critical public attitudes. The corollary of ambivalence is iliat the public is unwill-

ing to write a blank check for Federal agencies. Many Americans apparently harbor

reservations about Federal law enforcement. In particular: 31

• Only 36 percent of respondents agree that Federal law enforcement agencies

do a good job monitoring their own activities."

• More than three-quarters of the respondents (78 percent) support outside

monitors for Federal law enforcement agencies-monitors authorized to

report any abuses of power. And, fully 58 percent of respondents feel

strongly about iliis."

• Only one-third of respondents (33 percent) agree wiili the statement that

Federal agencies get along with, and cooperate wiili, local and State police

when they work together."

• Respondents are about equally split on whether Federal law enforcement Z: v agencies treat citizens fairly.

• Residents of the Mountain States consistently rated Federal law enforcement

lower on professionalism than residents of other regions, part of a pattern of

negative attitudes iliat appeared to be driven by concerns about abuse of police power, rather than concerns about big government. Mountain State

residents (and, to a lesser extent, those in the South and Southwest) tended to

worry more about abuse of citizen rights than residents of other regions."

In short, although survey data indicate that most respondents believe Federal law

enforcement agencies are doing well, it is equally clear most believe these agencies

can do much better.

These reasonably favorable attitudes must be understood in the context of overall

public attitudes about the American system of justice. By coincidence, just as the

Commission was drawing its evidentiary hearings to a close, the American Bar

Association (ABA) released a survey of I ,000 people concerning public perceptions

of the U.S. justice system."' The findings indicate that, in general, Americans

strongly support the system. According to the survey:

• People strongly believe in the system-80 percent of respondents agree that "in

spite of its problems, the American justice system is still the best in the world." 32 • Despite support for the overall system, confidence in individual components

of the system is mixed. Half of respondents have strong confidence in the i U.S. Supreme Court and about one-third are extremely or very confident of m other Federal courts and judges. Still, only 18 percent express strong confi- 2 "l1 0 :;:J dence in the Congress. ('] J'l1:;; rn • Those with the greatest knowledge of the system express the greatest confi- 2 -I dence, and males with higher incomes and higher levels of education express 2'"' the greatest confidence of any demographic group.

• People's confidence in key components of the justice system has increased in

the past 20 years. The level of confidence in courts of all kinds has im

proved, as has confidence in local police. (At the same time, confidence in

doctors, organized religion, public schools, Congress, and the media has

decreased, according to the survey.)

Although the ABA survey did not query respondents about Federal law enforce-

ment, it provided troubling evidence on issues that need to be addressed in the

Nation's legal system. Among substantial elements of the general population, the level of legal literacy is low. For example, an astonishing one-third of respondents

believe that in a court of law, it is the defendant who must prove his or her innocence

rather than the prosecutor who must prove the defendant's guilt. Demographic

differences in responses are also disturbing. White Americans, men, individuals who

earn $75,000 or more a year, and respondents with postgraduate degrees generally are

more knowledgeable about the justice system than minority Americans, women, and

respondents from lower income brackets and with less education.

Of gravest concern to members of the Commission is the finding that women,

nonwhites, and persons with lower incomes and less education are generally inclined

to disagree that the justice system affords equal treatment to men and women, the

------w

Despite disquieting findings such as these, the general positive public attitude is

noteworthy. The belief that the American system of justice is the best in the world

(whatever its shortcomings when measured against our best standards) is a powerful

asset that should be nurtured in the effort to advance Federal law enforcement. 33

In addition, the sophisticated public understanding of the relative strengths and

weaknesses of Federal law enforcement is encouraging. It understands the high level

of professionalism in the Federal system. It is capable of maldng powerful and useful

distinctions among the appropriate scope of responsibilities of Federal agencies, on

one hand, and State and local police, on the other.

Above all, the public seems to grasp intuitively that one of the great managerial

challenges that faces Federal law enforcement is the task of maintaining agency

integrity and professionalism in the face of the two great temptations that are present

in police work everywhere: abuse of police power and corruption.

DEFINITION AND SCOPE OF FEDERAl lAW ENFORCEMENT

If asked to name agencies that are involved in Federal law enforcement, most Ameri-

cans would likely identify the Federal Bureau of Investigation. Many would also

mention the Department of Justice, the U.S. Secret Service-and perhaps the Bureau

of Alcohol, Tobacco, and Firearms (ATF), the Immigration and Naturalization Service (INS), and the Drug Enforcement Administration (DEA). The Commission doubts, however, that, many citizens would identify the Internal Revenue Service,

the United States Customs Service, the Bureau of Indian Affairs, the Bureau of Land

Management or the National Park Service as Federal law enforcement agencies, which, of course, all are.

The following question arises naturally in an investigation of this sort: What is included under the umbrella of Federal law enforcement? Writ large, by Federal law

enforcement, this Commission defines Federal law enforcement as the entire range of

Federal Government activities and operations intended to prevent crime, apprehend

and prosecute offenders, 17 and maintain a corrections system. The Commission

distinguishes this national apparatus for Jaw enforcement from the much larger enterprise devoted to State and local law enforcement, which is defined as the 17,000

jurisdictions in the country at the State, county, and municipal levels and the approxi

mately 620,000 sworn officers they employ- State and local police, sheriffs, and

special policing units." 34 In the aggregate, the Federal law enforcement system is an enormous and com

plex array of agencies-148 in all-that exercise Jaw enforcement functions in the

name of the people of the United States. A limited survey conducted by the Bureau of Justice Statistics indicates that, as of June 1996, Federal agencies employed about

74,500 full-time personnel who were authorized to malce arrests and carry firearms19

(A complete Jist of all Federal agencies with Jaw enforcement responsibility is provided in Appendix C.)

As Figure 1 demonstrates, 80 percent of Federal law enforcement personnel, excluding prosecutors, are involved in just three areas: criminal investigation and

enforcement (almost 43 percent), maintaining prisons and other correctional facilities (more than 21 percent), and police response and patrol (about 16 percent). All told,

the Federal enterprise spends some $26 billion annually on law enforcement priori

ties."' To the layperson, the sheer scope and scale of the effort across the entire

Federal Government staggers the imagination.

Although the Commission heard testimony from representatives of many agen cies, because of time and budget constraints, its analysis focused on large agencies.

Specifically, the Commission concentrated on 14 of the largest Jaw enforcement Figure 1. Percent of Federal Officers Authorized to Carry Firearms and Make Arrests, by Function

Noncriminal lmrestigatilom;/ Enforcement (12.91 %) Security/Protection (2.91)

---- Court Operations Corrections (3.56%) (21.22%)

Other (.46%)

Police Response and Patrol

Enforcement (42.98%)

Source: Bureau of Justice Statistics, U.S. Department of Justice, "Federal Law Enforcement Statistics." (http://www.ojp.usdoj.gov/bjs/fedle.htm) Note: These percentages correspond to the 74,500 fuiHime personnel as of June 1996. agencies at the Federal level. In the main, its interest lay with those agencies that 35 have a great deal of face-to-face contact with the American people and that employ large numbers of "1811 series" employees-and other individuals with the authority to investigate, carry firearms, execute search warrants, and make arrests."

Even this more limited definition of the Commission's task describes a fonni- dable law enforcement apparatus, totaling in the aggregate some 88,747 sworn officers and combined budgets in excess of $6.8 billion annually. 22 (See Figure 2.)

Indeed, some estimates indicate that the Department of Justice and the Department of the Treasury, combined, account for 90 percent of all weapons-carrying officers in the

Federal Government. In the Department of Justice, these agencies include the Federal

Bureau of Investigation, the Drug Enforcement Administration, the Immigration and

Naturalization Service, U.S. Marshals Service, and the Federal Bureau of Prisons. In the Department of the Treasury they include the Secret Service, the Customs Service, and the Bureau of Alcohol, Tobacco, and Firearms, and the Criminal Investigation

Division of the Internal Revenue Service-"

What the Commission has found is a very mixed bag. By definition, Federal law enforcement must cover a broad spectrum. The agencies involved are necessarily Figure 2. The 14 Primary Law Enforcement Agencies (FY 1998)

Budget** r Department and Agency Personnel* (in millions)

· Department of Justice Federal Bureau of Investigation 11,710 $1,911.0 Drug Enforcement Administratioll 4,246 674.0 Immigration and Naturalization. Service 17,573 29.0 United States Marshals Service 2,924 43.4 Federai·-Bur8au of Prisons .. "'* 28,390 70.9 Department of the Treasury Bureau of Alcohol,· Tobacco,. and· Firearms 1,775 317.2 Internal Revenue Service · 3,292 415.9 United States Customs Service 11,910 2,591.0 United States Secret Service 3,613 500.0 Department of Agriculture · United States.Fores!Service 614 48.9 Departmentofthe Inferior Bureau.of Indian Affairs 307 78.5 Bureau of Land Management 196 14.7 National Park Service/National· Park Rangers 1,596 58.6 National Park Service/United States Park Police 601 60.0

Total 88,747 $6,813.1

Sources: Commission on the Advancement of Federal Law Enforcement Survey, 1999.

36 * Personnel authorized to carry firearms. ** Dollar amounts refer to personnel costs for those authorized to carry firearms. The Federal Bureau of Prisons (BOP) personnel figure (28,390) represents employees who meet annual firearms qualification requirements and are currently certified. Thus, the figure includes BOP employees who are not correctional officers but who can carry and use firearms if required. The number of full·time correctional officers is estimated to be 12,600. See footnote 25 and Appendix G for additional information.

complex. At a minimum, the Government of the United States is responsible for

investigating and bringing to a satisfactory resolution all violations of civil and

criminal law that occur during the course of interstate commerce. Federal law

enforcement agencies must also, among other obligations, secure U.S. borders,

eliminate smuggling, enforce the Federal Government's laws regarding immigration

and naturalization, protect Federal courts, and ensure that the Nation's tax system is

enforced fairly and efficiently. In addition, Federal agencies are expected to protect

members of the public visiting the Nation's parks and great monuments and also to

protect high-ranking Government representatives, who might otherwise be subject to

assault or assassination for no other reason than their prominence in carrying out their

responsibilities as public officials.

No one can deny that those are all necessary and appropriate Federal roles. This Commission is aware of no responsible point of view holding that State or local units of government should assume these responsibilities or are capable of shouldering

these burdens.

Of necessity, the Federal Jaw enforcement apparatus is large. As Figure 3 indi-

cates, each agency has quite distinct responsibilities. The FBI, for example, with

investigative jurisdiction over violations of more than 200 categories of Federal

Figure 3. Agency Investigative Responsibilities

Department and Agency Illustrative Types of Investigative Responsibilities

Department of Justice Federal Bureau of Investigation Prioritles:. counterterrorism; drugs and organized ------.,---:wJ'rrnr,torelgn countenntelligence; VIolent crime; and white-collar crime. Drug Enforcement Administration Enforces provisions of Federal law that govern controlled· substances and drug-trafficking,

Immigration and Naturalization Service Prevents improper entry of people into the United States_ and deports illegal aliens. United States Marshals Service Handles bond defaults and probation and parole 37 violations; and enforces bench warrants from Federal judges. Federal Bureau of Prisons Administers Federal penal facilities.

Bureau of the Treasury Bureau ofAicohol, Tobacco, and Firearms Enforces laws governing alcohol, tobacco, firearms, explosives, a_rld arson.- Internal Revenue Service lnvestigates violations of-the U.S. Tax Code. United States Customs Service Interdicts and seizes narcotics and other .contra band at or near U.S. borders. United States Secret Service Protects the President and other high officials; investigates crimes related to money, banks, and counterfeiting.

Department of Agriculture United States Forest Service Engag~s in routine patrols and respopse to calls,

Department of the Interior . Bureau of Indian Affairs Engages in routine patrols and response to calls on tribal lands. · ·

Bureau of Land Management Engages __ in routin~ __ patrols. and .. response .. to .calls. on Federal _lands. National Park Service/National Park Rangers Engages in routine patrols and response to calls in national parks. · National Park. Service/United States Pari< Police Engages in routine patrols and response to calls at and near national monuments.

Sources: Commission on the Advancement of Federal Law Enforcement Survey (1 999); and General Accounting Office (Sept. 1996), Federal Law Enforcement: Investigative Authority and Personnel at 13 Agencies, Washington, DC: GAO (GAO-GGD-96-154). crimes, has assigned top priority in recent years to five areas: (1) counterterrorism;

(2) drugs and organized crime; (3) foreign counterintelligence; (4) violent crime; and

(5) white-collar crime. The Immigration and Naturalization Service, by contrast,

concentrates on preventing improper entry into the United States and apprehending

and removing illegal aliens. While the United States Marshals Service enforces the

writ of Federal courts, the United States Secret Service protects the President and

others under its care, and the Bureau of Alcohol, Tobacco, and Firearms administers

laws regarding distilled spirits, beer, wine, tobacco, firearms, explosives, and arson.

The missions and jurisdictions of each of these agencies are different, and prop

erly so, and the skills required to carry out these functions are likely different too, and

appropriately so.

This is not to suggest that the current organization of Federal law enforcement is

perfect and needs no change. As will be evident in the remainder of this report, the

Commission strongly believes that the current organization of Federal law enforce-

38 ment needs to be changed. At the same time, however, it is our conclusion that the

effort to comprehend the challenges to Federal law enforcement is not helped by easy

references to the number of agencies, or, in the case of these 14 agencies, the size of

their budgets. The key questions are not whether there are too many law enforcement

entities or whether their budgets are too large. They are, first, whether the mission is

sufficiently distinct; second, whether each of these agencies is able to carry out its

assignment responsibly and well; and, third, whether these entities are capable of

cooperating with each other when the need for joint operations arises. Finally, the

unprompted question from the Commission's citizens' survey rises to be asked: Are

Federal law enforcement agencies capable of effective collaboration with State and

local entities when called upon?

HISTORY OF FEDERAL LAW ENFORCEMENT IN BRIEF

The original role of Federal criminal law enforcement was distinctly ancillary to that

of the States. Federal law enforcement addressed matters of specific Federal concern,

almost without exception matters beyond the reach and competence of State and local law enforcement officers. For years after the Constitution was adopted in 1789,

States defined and prosecuted almost all criminal conduct. One recent American Bar

Association analysis pointed out that originally the Federal Government "confined its prosecutions to less than a score of offenses," including treason, bribery of Federal officials, peijury in Federal court, theft of Government property, and revenue fraud."

But the tradition that crime should be understood to be primarily a responsibility of State and local law enforcement agencies has come under severe strain in recent decades. The Commission will return to this issue below; here it wants only to note that, in recent years, national politicians of both parties, in the Executive Branch and the Congress, have developed a predisposition to federalizing common crime.

In a paper prepared for the Commission, Stanley E. Morris, a former senior official with the Departments of Justice and the Treasury, usefully divided the devel opment of Federal law enforcement into five periods:"

• Foundations (1789-1860), when tl1e basic mission of the Federal Govern- 39 ment and the relationship between Federal, State, and local law enforcement

evolved.

• Federal structure emerges (1861-1918), when the Civil War, westward

expansion, and the industrial revolution made new demands on Federal law.

• Reform (1919-1945), when the first real efforts to establish professional,

well-trained Federal law enforcement entities were made and the Nation went

through the Prohibition Era.

• New problems (1946-1972), when issues of the loyalty of Government

employees and related alarm about espionage developed during the Cold War,

along witl1 increased sophistication of organized crime, growth in drug

trafficking-and the consequent pressures these developments placed on law

enforcement.

• Complexity and challenge (1973-present), presenting issues of the growing

federalization of crime, the impact of technology and globalization on

criminal activity, and the need, amidst the growth of Federal law enforce-

ment, to improve its coordination. A Primer on the Development of Federal Law Enforcement

After the. First Congress established the framework for the American judicial system In 1789, landmark elements in the development of Federal law enforcement included:

• Expanding the duties of the Attorney General during and after the Civil War to give that officer jurisdiction over U.S. Attorneys and Marshals and to provide the. office Cabinet-level status. Creating the United States Secret Service after the Civil War to address currency counterfeiting. Providing law enforcement authority to both customs and immigration officers between 1865 and 1900 and assigning protective duties to the Secret Service; Guaranteeing Federal officers the latitude to enforce Federal law without interference from local law enforcement officials In the 1890 Supreme Court Case, In Re Neagle. Establishing. the first Federal prisons in 1891 (prisoners previously had been housed in State facilities). • Assigning U.S. Marshals and the military to maintain order in the West after the Civil War and granting arrest authority to Park Rangers and Forest Service personnel in 1905. • Establishing the Bureau of Investigation in 1908 within the Justice Department, which during World War I, was called on to enforce the controversial "Palmer Raids" during the Red Scare. Subsequently J. Edgar Hoover was appointed director and set out to professionalize the new Federal Bureau of Investigation. Appointment of the Wickersham Commission by President Herbert Hoover in 1929 to rationalize Federal law enforcement and encourage a more coherent and professional approach. • Creating new Federal crimes in the 1930s and 1940s-kidnapping, the use of wire communica tions for criminal activity, racketeering and extortion, transportation of stolen property across State lines, robbery of Federal banks, unlawful flight to. avoid prosecution or incarceration, and traffick 40 ing in firearms. Establishing in 1935 the FBI's National Academy for training agents and select State and local officers. Increasing the sophistication of FBI laboratory and fingerprint divisions from 1940 to date • . • Growing Cold War concerns about Communism, loyalty of Federal employees, and espionage threats. • FBI creating "Ten Most Wanted" program in 1950; U.S. Marshals helping integrate the University of Mississippi in 1962; and establishment of the Federal Law Enforcement Training Center in 1970 in the Department ofthe Treasury. • Beginning to attack organized crime with Organized Crime Strike Forces and the help of the Racketeer Influenced and Corrupt Organizations Act (RICO)-the racketeering statute enacted in 1968. Creating the Drug Enforcement Administration in 1973; convening of Senate hearings detailing abuses by FBI and intelligence agencies. 2 m • Growing concern about violent crime in the 1980s resulted in laws making use of a fireanm in the 21 commission of a crime a Federal ofiense and giving Federal courts jurisdiction over violent repeat offenders, even forrepeat crimes of local offenses. Creating additional jurisdiction to address new technologies-credit cards, computers, and the Internet. • Expanding mutual legal assistance and extradition treaties involving Treasury and the State Department to deal with globalization of crime in the 1980s. • Coming to grips with the growth of terrorism at home and abroad in the 1990s. This analysis malces it clear that, although the framers of the Constitution were

satisfied with creating the Supreme Court, the first Congress was determined to

establish the foundation of Federal law enforcement. In fact, the very first bill

introduced in tl1e first session of the first United States Senate would become the

Judiciary Act of 1789, creating district and circuit courts, establishing the office of

the Attorney General of the United States, and providing for United States Attorneys

and the United States Marshals Service, The foresight of that first Congress can be

appreciated in that, more tl1an 200 years later, the general structure it laid down

continues to function, And it continues to function reasonably welL

What we find in the Morris analysis and others is a sense that the scope of

------Federal-law-enforcement-has-c>;panded;-particolarly-ilne-cent-decaaes[see Box, ~p;

Primer on the Development of Federal Law Enforcement," page 40). As that scope

has enlarged, Congress and the Executive Branch have struggled repeatedly with the

challenge of how best to organize the agencies exercising law enforcement powers."

The period covering approximately the past quarter century, in particular-a time 41 when the Nation witnessed tl1e expansion of the war on drugs, the creation of tl1e

Drug Enforcement Administration (DEA), the changes associated with post-

Watergate reforrns, the astonishing pace of technological change, the rise of terrorism,

and the development of a global economy in which international criminals treat

national boundaries with contempt-has proven to be a period of profound challenge

and adjustment for Federal law enforcement.

Overall, it is clear that the Federal law enforcement community has grown, as the

needs and expectations of citizens toward what they expect from their Federal Gov-

ernment have increased. But growth has come at great cost. The simple truth is that

these expectations have added immeasurably to the difficulty of executing the variety

of Federal law enforcement missions effectively and efficiently. Although overlap

and duplication among Federal agencies are often criticized, this condition is in many

ways inevitable (in some ways, it may even be desirable) given the complexity of the

crime problem any modern society faces. But inevitability does not mean that efforts to improve the situation are thankless

or fruitless tasks. Such efforts have never been more sorely needed than today. In the

past, some measure of redundancy and duplication might have been acceptable, both

as a fail-safe strategy and simply as part of the inescapable nature of bureaucratic life.

With the rapid pace of change today, however, what cannot be accepted is any indication

that toleration for redundancy and fail-safe features leads to lack of clarity about who's in

charge of what, who's responsible, and who's accountable for performance.

Performance that was acceptable 30 or 50 years ago, in an age when time itself

appeared to move more slowly (because communications, by today's standards, were

so relatively slow), is no longer tolerable. In an age when communication is instanta-

neous, borders are more porous, and criminal activity is both more high-tech and

international, the response of Federal agencies must be similarly up-to-date. The

world of Federal law enforcement has been stretched to new limits in the past quarter

century. Undoubtedly, it will be stretched even further in the next.

42 HELPING PEOPLE DO WHAT THEY CANNOT DO FOR THEMSELVES

Federal law enforcement faces five great challenges: coordinating many Federal

agencies with diverse missions, functions, priorities, and even cultures; terrorism at

home and abroad: globalization of crime; the federalization of crime; and the impera

tive to maintain professionalism and demonstrate agency accountability.

The Commission believes that the definition of the appropriate function of the

National Government was well defined by President Abraham Lincoln more than a

century ago. That definition serves in law enforcement as it does in other areas of

our national life. President Lincoln said: "The legitimate object of government is to

do for the people what needs to be done, but which they cannot by individual effort

do at all, or do so well, for themselves."

Maintaining an effective Federal law enforcement capability requires defining

and putting in place a system that helps the American people, and the States and

localities serving them, do what they cannot do for themselves, or do as well. The difficult part of the task is to accomplish that goal without creating an overbearing national police presence. In the following chapters. the Commission lays out a five- part agenda to help the Federal law enforcement community respond to the challenge defined by President Lincoln.

43 CHAPTER TWO. COORDINATION: WHO'S IN CHARGE OF WHAT?

of the gravest concerns of this Commission following its 2-year study is

coordination at the Federal level. Although successful coordination efforts in

the form of task forces of one kind or another can be identified (see sidebar), it is no

exaggeration to state that continued inattention to this situation runs the risk of

seriously jeopardizing both public safety and national security.

In the face of the grim realities of large-scale modern crime, it is sometimes hard

to know who is in charge of what areas of law enforcement at the Federal level.

Although we find some excellent examples of cooperation between Congress and the 45 Executive Branch and of coordination across Federal agencies (and between Federal

and State and local agencies), several shortcomings in coordinating policy and

practice are readily apparent as well."

First, we find that the large number of Federal agencies involved with law en-

forcement presents a challenge to efficient and effective administration. Second, we

find that many of these agencies and officials are unable to point to readily under-

stood policies about how they are to coordinate their activities, amongst themselves

2 or with State and local agencies. Third, we find considerable confusion about agency N1 ~ roles and missions. All of these problems hinder the effective and efficient adminis-

!ration of justice. They are difficult policy problems to which Congress and the

Executive Branch have a responsibility to respond.

EFFECTIVENESS AND EFFICIENCY

Most Americans, convinced that devotion to individual liberties and constraints on

Federal power have circumscribed the growth of Federal law enforcement, will

perhaps be startled at the size of the enterprise described in Chapter One. The Coordinating Diverse Agencies at the Federal, State, and Local Level

The challenge of coordinating the investigations of i 4 major Federal agencies with the ongoing work of police and Investigative agencies in i 7,000 State and local jurisdictions is sometimes made easier by task forces and strike forces of various kinds. Some examples: Border For many years, the Immigration and Naturalization Service and the Customs Service have Coordination worked together at U.S. borders. In recent years, particularly at the Southwest border with Initiative Mexico, joint manning of border booths has created some friction with regard to who Is in charge. About i 8 months ago at the San Ysidro border crossing from Tijuana, involving some 24 lanes of traffic, INS and Customs initiated a Port Quality Improvement Committee to encourage managers from both agencies to get together regularly to discuss how to improve coordination. The effort is working so well that the Attorney General and Secretary of the Treasury are considering institutionalizing the approach at all 3i major ports of entry at the border. The effort will address the mechanics of how traffic approaches the border as well as cooperation regarding who crosses the border, investigations, intelligence gathering, and training. Interdiction Made up of leaders of Customs, the Coast Guard, DEA, and others, this committee reviews Committee policy on interdicting and seizing narcotics shipments. Dividing the drug world into three spheres-the source zone of South America; the transient zone of the Caribbean; and the arrival zone, roughly i 00 miles from the U.S. shoreline-Jaw enforcement assigns different agencies to different zones. Customs planes might observe planes or ships leaving the source zone; observe drops in the transient zone, where the Coast Guard might pick them up; and when the contraband reaches within iOO miles of U.S. shores, Customs officials are able to make arrests. Safe Streets Beginning in i 992 when the FBI was directed, for the first time, to become involved in violent Task Force street crime, the agency has helped establish some i 66 Safe Street Task Forces in every one of the agency's 56 divisions. These task forces involve about BOO FBI Special Agents working with i ,200 State and local law enforcement officials, and agents from other Federal agencies, to address gang violence, fugitives, bank robbery, and narcotics. 46 Southwest This activity, an enormous initiative ranging from San Diego to Texas, is an effort to deal with Border large and very powerful drug cartels smuggling narcotics, money, and illegal immigrants Initiative between Mexico and the United States. At the heart of this highly successful effort is a partnership between the DEA, Customs, and the FBI, an "almost seamless" integration of effort, according to participants, that would have been unheard of a decade ago-including co-location of offices, DEA supervision of FBI agents, and FBI supervision of DEA personnel. Terrorism In recent years the FBI has created iB terrorism task forces around the country, unique efforts Task Forces involving the FBI, CIA, DEA, ATF, Customs, INS, and other Federal, State, and local officers charged with preventing and reacting to terrorist acts. In addition, the FBI established a Counterterrorism Center in i 996, staffed by experts from some 1B different law enforcement agencies, intelligence organizations, and the military. Technical This effort, first developed for DNA analysis, credits Federal law enforcement agencies, Working particularly the FBI, with encouraging quality assurance in forensic analysis in Federal, State, and Groups local laboratories.. Designed to bring together forensic scientists at all levels to improve methods and develop consensus standards for analysis of physical evidence, these working groups are now examining analytical protocols for drugs, materials, trace evidence, fingerprint identification, documents, and other areas. Ad Hoc Many examples demonstrate that interagency cooperation among law enforcement organizations, Interagency at all levels of government, can work smoothly and successfully. One example arose during Cooperation the civil disorders that occurred in Los Angeles in April1992.28 With a remarkable sense of urgency and appropriateness of response, the President signed an emergency Executive Order, the Attorney General designated the FBI as the lead agency, the FBI mobilized a Command Center onsite (in Westwood), and an interagency Federal Task Force consisting of more than 1 ,200 Federal agents, was rapidly assembled from resident and nearby bureaus. Agents and other personnel were drawn from the FBI, ATF, Bureau of Prisons U.S. Customs Service, and Immigration and Naturalization Service. · They assisted the Los Angeles Police Department and provided other law enforcement services during and after the disorders in a textbook example of how Federal agencies can work together, on short notice, under extraor dinary challenging conditions. 2; 0 Sources. Statements of Louis J. Freeh (FBI), Jami St. Clair (Columbus Forensics Laboratory), and Raymond Kelly (United ~ States Customs) before the Commission; Commission survey of 14 agencies. C) members of this Commission certainly were. It turns out, however, that the phrase

"nearly !50 Federal law enforcement agencies," although technically accurate,

conceals as much as it reveals.

The 148 agencies listed in Appendix C include every Federal department and agency

with a police officer or investigator anywhere on its staff. The list includes every Office

of Inspector General-in 14 Cabinet and subcabinet-level Departments and in 46 "Inde-

pendent Establishments and Government Corporations," such as the Board of Governors

of the Federal Reserve System, the National Archives and Records Administration, and

the National Endowments for the Arts and the Humanities." TI1e list includes four

separate police forces and investigative services serving tl1e Legislative Branch of Gov-

------ernment-(6enerai-A-ccounting-0ffice;-6overnment-Printing-0ffice;-bbrary-ofE'ongressc,------

and U.S. Capitol). Separate law enforcement entities protecting the Judicial Branch and

quasi-official agencies (such as Amtralc and the Smithsonian Institution) are also included

in the mix. So, too, are military police functions and protective services in every branch

of tl1e Arnled Services. In short, the number "nearly 150 agencies" includes practically 47 every agency of any size at all in the Federal Government.

Policymalcers seriously concerned about overlap and duplication in the number of

Federal agencies with law enforcement authority could readily reduce that number by

40 percent, practically overnight. It could be accomplished with little more than a

stroke of the legislative pen, by consolidating the 60 different Offices of Inspector

General into a central administrative entity that would, in turn, detail its employees

back to their current assignments. On paper, everything would look tidier, different,

and more efficient, but in the world of Federal law enforcement, nothing would

change.

This Commission offers that observation not to malce light of the work Inspectors

General perfmm in rooting out fraud, waste, and abuse. It is offered to bring a more

realistic frame of reference to the discussion. When policymakers and the American

public express concern about Federal law enforcement, their concerns do not usually

turn on whether college graduates repay their student loans, or a professor of philoso-

phy misspends a $10,000 grant from the Humanities Endowment, or why each of two separate Branches of Government literally across a street from each other, Congress

and the Supreme Court, has its own distinct police force.

Although each of those situations raises real questions of law enforcement, they

are questions about administration and program accountability that rarely concern

most members of the public. When citizens worry about Federal law enforcement, as

the Commission's survey confirms, they concentrate on quite clear and basic con-

cerns. They worry about whether they can depend on these agencies to protect them.

They question whether Federal law enforcement personnel are able to coordinate their

own activities effectively and cooperate efficiently with State and local entities when

that is required. And they apparently have quite serious reservations about the dual

possibilities of corruption and abuse in Federal law enforcement activities. These are

serious, fundamental policy issues. They go to the very heart and soul of the charge

laid before this Commission. When the issues are so serious and fundamental,

policymakers caanot afford to let the conversation be sidetracked and distracted by

48 numbers that, in themselves, mean very little.

Our conclusion is that, of necessity, the Federal law enforcement apparatus is

large and complex. We also believe that insufficient attention has been paid to

making sure that coordination is as effective as it can be.

Conception and Planning of Operations

Congress asked the Commission to examine the issue of how well Federal law

enforcement operations are conceived, planned, coordinated, and executed. The

Commission approached this charge from a policy, not an investigative, perspective.

With the Commission's limited resources of time, staff, and budget, it found itself ill-

equipped to investigate specific law enforcement operations and reluctant to second

guess either official inquiries or the judgments of officers on the firing line. (See

pages 20-21 for an outline of the Commission's review of the public evidence about

eight recent, highly visible Federal law enforcement operations.)

From the Commission's review of the public record, its own hearings, and the

survey of major Federal law enforcement agencies, several conclusions appear clear. First, when agencies enjoy the freedom to conceive and mount major operations,

in which law enforcement officers define the issue and seize the initiative, such

operations are likely to be well-planned, well-conceived, and well-executed. Time,

foresight, and initiative are law enforcement's great allies. With them, Federal

agencies enjoy the luxury of thinking carefully about how to proceed and how best to

use the talents of everyone involved.

Second, problems are most likely to develop in situations where planning, con-

ception, and scope of the operation are by definition almost entirely absent-that is to

say when Federal agents are responding to a crisis after-the-fact, either to rapidly

deteriorating situations or situations that have already spun out of control. Pressure, ...... ·----tcmsion,nnd-loss-ef-initiati-ve-are-law-enfereement'li-great-enemies~.------···---~

In times of unexpected emergency, Federal performance appears mixed in the

public eye. Much criticism, for example, accompanied what appeared to be a bungled

Federal investigation of the 1996 Olympic bombing in Atlanta; but members of the

public and the media applauded Federal agency performance after the Oldal10ma City 49

disaster.

Third, the wisdom of the old adage that the mark of professionals in law enforce-

mentis their ability to use the breaks that develop is well borne out in many of these

incidents. The World Trade Center case was broken because a terrorist, whose rental

truck was destroyed in the blast, did something truly bizarre: he pretended that the

truck had been stolen, demanded a refund from the rental agency, and refused to !alee

"no" for an answer. Responsibility for the Oklahoma City Federal Building bombing

was quicldy pinned down because the major perpetrator carelessly exposed himself to

arrest by leaving the bombing scene in an umegistered automobile without license

plates. The millions of dollars and years of effort spent pursuing the Unabomber

accomplished little until the bomber's brotl1er came forward with his suspicions.

Chance and the human factor worked in law enforcement's favor in each of these

situations.

The Commission's judgment is that Federal law enforcement agencies possess a

growing and reliable body of knowledge and experience about how to improve operational planning and implementation. We are also convinced that insufficient

attention is paid to these lessons in training programs in some Federal agencies. As

we note below, moreover, the record indicates that development of common policy in

critical areas such as use of deadly force leaves a lot to be desired.

COORDINATION

During its hearings, the Commission heard testimony from. F.T. Davis, Jr., a policy

scholar of Federal law enforcement administration who served, at one time, as general

counsel and head of the law enforcement section of the President's Reorganization

Project under President Jimmy Carter."' Mr. Davis estimated that, in the course of the

past 30 years, Congress and the Executive Branch have been adding Federal law

enforcement agencies at the rate of 2.3 agencies per year. This startling growth,

generated in the main by the establishment of offices of Inspectors General in some

60 agencies and by the expansion of legislation governing such matters as the envi

50 ronment and employee safety, inevitably creates problems of coordination.

With so many agencies to coordinate, it is often hard to know who is responsible

for doing what. According to Mr. Davis, the difficulty is compounded many times

over in the field, where what looks to be reasonable and straightforward (on paper

and on organizational charts at headquarters) has to be put into effect. Hence, a!-

though agency officials can often distinguish their missions reasonably well-the

FBI, for example, deals with terrodsm and the ATF is responsible for explosives,

firearms, and arson-in the real-world, things are not as clearly divided. After the

explosion at the Atlanta Olympic Games in 1996, for example, FBI and ATF agents

were reportedly in disagreement for some time with respect to which agency had

authority to conduct which parts of the investigation-and who had lead authority.

Malting these determinations is far from simple. In fact, Attorney General Reno

commented on precisely tltis issue when she told the Commission:

It is frustrating when one agency is designated as the principal agency for the

investigation of terrorist activities and another agency is designated as the

principal agency for the investigation of bombings. And then they have a to- do between the two that comes up to Washington and I hear about it. I hope

that this is quickly becoming a thing of the past.

This Commission hopes so, too. But it doubts that, without some explicit action on the part of Congress and the Administration, this desirable state of affairs will come to pass easily or soon.

Examining what is in place now, it is difficult to define the Federal role. Because of federalization of crime, Federal law enforcement responsibilities have expanded into every nook and cranny of State and local criminal codes. Perhaps even more troubling, it is equally difficult to understand who's in charge of what.

The Commission's concerns were not alleviated by reviewing the answers submitted by the 14 major Federal law enforcement agencies that were the principal focus of this Commission. According to the Commission's survey: 31

• Crises potentially bring agency missions into contlict. It's not clear who's in

charge of responding to terrorist bombs in the United States-the FBI or 51 ATF. Abroad, similar crises will also involve the Central Intelligence

Agency, the Department of State, and the Department of Defense, with

accompanying confusion about who's responsible for what.

o A number of agencies define their mission as "enhancing their own position"

or becoming "the lead agency" in particular areas of crime. (The United

States Secret Service, for example, speaks of enhancing its "position as the

lead protective agency" and becoming a "leading Jaw enforcement agency in

financial crime. ")32

• Such self-serving statements of purpose are consistent with the observation

above that mission statements are directed more at internal constituents than

the public. They do little to advance the public interest and the Commission

believes that goals should be framed around pursuit of anti-criminal objec-

lives, not bureaucratic self-interest.

TI1e Commission was asked to examine two issues with regard to overall coordination: the location and efficacy of the office or entity directly responsible for coordinating Federal law enforcement (apart from the President of the United States), and the quality of coordination in the area of international crime-and whether

deployment of resources overseas diminishes domestic law enforcement.

Executive Order No. 11396

Even as far back as 1978, testified F.T. Davis, Jr., the President's Reorganization

Project identified 1,200 instances of duplication in law enforcement assignments, as

multiple agencies were often involved in enforcing the same law. Although this

Commission has no reason to believe this state of affairs is any worse today than it

was 20 years ago, we are convinced it is no better.

This situation is all the more difficult to understand because a clear Federal

statement about the importance of coordinating Federal law enforcement activities

with each other, and with State and local law enforcement agencies, has existed for

more than 30 years. The Commission refers to Executive Order No. 11396, signed by

President Lyndon Johnson in February 1968. (The Executive Order is reproduced in

52 Appendix D.)

That order, developed more than a quarter-century ago, might have been written

last week. Citing the challenge of crime in America, the need for greater coordination

among Federal agencies, the equally compelling need to assist State and local law

enforcement entities, and the clear responsibility for the Attorney General to serve as

"chief law officer" of the Federal Government, Executive Order No. 11396 charged

the Attorney General with coordinating all law enforcement and crime prevention

activities of all Federal departments and agencies. It also directed the Attorney

General to coordinate Federal activities as they relate to State and local law enforce-

ment. Finally, it directed "each Federal department and agency ... to cooperate with the

Attorney General" in the performance of the functions under the Order.

Had that directive been carried out, this Commission believes that many of the

coordination problems troubling Federal law enforcement today would have been put

to rest. Unfortunately, the Executive Order itself was put to rest, probably the casu

alty of a combination of events, including prosecution of the War in Vietnam, an

election resulting in a change of Administration within a matter of months of the Order's appearance, and agency hostility to its contents. In 1994, the importance of

the Attorney General's coordinating role resurfaced. The National Perfonnance

Review recommended the" ... designation of the Attorney General as the Director of

Law Enforcement to coordinate Federal law enforcement efforts [and] changes in the

alignment of Federal law enforcement responsibilities."33 The GAO report on this

and other recommendations " ... supported the need for greater coordination of the

numerous agencies involved in Federal law enforcement. The decentralized opera-

tions, including the 93 U.S. Attorneys and the various investigative agencies within

Justice and Treasury, complicate efforts by the Department of Justice to coordinate

and direct a wide variety of initiatives and programs to fight crime." 34

--~The-eonmTissimn!lso noresrlTiiflhe need for common coordinating procedures

extends to issues of terrorism and international crime. In light of the global nature of

the modem economy and modern crime, law enforcement is not a zero-sum game.

Resources devoted to criminal threats from abroad are not provided at the expense of

effective law enforcement at home. Effective efforts on- and offshore are required, a 53 truth clearly evident in our national struggle with narcotics, almost all of them

developed and exported from abroad but consumed within our borders.

Urgently needed, in our judgment, are measures to improve the coordination of

Federal law enforcement domestically and internationally.

Coordination with State and Local Agencies

This Commission is equally troubled by what appear to be major problems providing

effective coordination with State and local jurisdictions, one of the issues that led to

development of Executive Order No. 11396.

Throughout its tenure, the Commission received a great deal of evidence detail-

ing the challenges involved in creating workable models of Federal-State-and-local

cooperation and coordination." Much of this testimony was positive. Jami St. Clair

of the American Society of Crime Laboratory Directors, for example, applauded the

real partnership and sense of cooperation that exists between local law enforcement

forensic scientists and laboratory directors and their Federal counterparts. 36 She noted that local forensics laboratories depend on research and development and

technology transfer from Federal labs, pointing out, for example, that the FBI's role in

developing and promulgating DNA standards benefited the entire criminal justice

community. Ms. St Clair had similar high praise for the FBI's Drugfrre Program and

the ATF's BULLETPROOF program. Drugfire is a multimedia database and imaging

system that automates the comparison of images of bullet cartridge cases, offering

matches in minutes instead of the hundreds of hours that might be required to com

pare manually cartridge markings with microscopes. The system permits frrearm

examiners to retrieve quicldy cartridge images from unsolved case files. BULLET-

PROOF (and BRASSCATCHER) offer similar possibilities of linldng previously

unlinkable crimes. Ms. St. Clair also noted, however, that the two agencies had

difficulty cooperating around these programs and that their competing "self-interests"

marred the programs' initial implementation.

In similar fashion, Chief Richard W. Myers (Appleton, Wisconsin), Bob Ricks

54 (Oklahoma Commissioner for Public Safety and a former senior FBI official), and A.N. "Bubby" Moser (Executive Director of the National Sheriffs' Association),

spoke of the value of cooperative relationships with Federal law enforcement entities.

Chief Myers commented on the value of the training he received at the FBI Academy

as an indication of the benefits of national professional development activities. He

also complained about the federalization of criminal offenses and cautioned that

Federal assistance should not be thrust on local agencies without joint discussion

about how best to proceed. Mr. Moser testified that his association and its members

have an outstanding relationship with many Federal agencies-praising in particular

agencies of the Department of Justice and the Department of the Treasury and the

technical assistance they provide to State, county, and municipal agencies on an

ongoing basis.

Mr. Ricks reported that the FBI's success in Oklahoma City depended on coop-

eration from local law enforcement agencies. Still, he cautioned, nationwide many

local law enforcement entities feel trapped in a tug-of-war between competing

Federal agencies that is so severe that local officers feel they have to malce a choice. And, he cautioned, local officers have long memories. At one point, as an FBI agent

in New Jersey in the 1970s, Mr. Ricks recalled that he ran into difficulty obtaining

the cooperation of the State police superintendent. As it turned out, the ofticial was

angry at the FBI over an incident that had occurred 40 years before: The New Jersey

State Police had turned over to the FBI the ladder used in the 1930s kidnapping of

Charles Lindbergh's child and the FBI had never returned it. 37 Forty years later, the

discourtesy still rankled.

Although the Commission finds these acknowledgments of Federal assistance

gratifying and doubtless sincere, it remains troubled. An undertone of criticism

accompanied several presentations and the Commission's doubts grew after review-

------ing-answgr~bout-mission-and-function-subrnitted-bythe-Jzl---age-ncies m response to

the Commission's request. In these comments, attention to State and local issues is

almost nonexistent." With respect to State and local law enforcement, the state-

ments reveal two things:

• First, most mission statements are quite parochial, often couched in terms 55

that have little to do witl1 State and local law enforcement officials; and

• Second, reference to relationships with State and local law enforcement

officials is conspicuous by its absence in most of the mission statements, a

clear indication tl1at such relationships are not viewed as part of the central

mission.

The Commission's hearing record provides abundant evidence that leading

Federal officials understand the dimensions of the challenge involved with improving

coordination with State and local law enforcement entities. FBI Director Freeh, for

example, spent much of his time with the Commission reviewing the many areas

where cooperation and coordination among Federal, State, and local officials is

essential to effective law enforcement. He testified to the "critical need for the

continued integration and cooperation by all of our Federal, State, local, and foreign

law enforcement agencies ... that spills over into the intelligence community.""

Attorney General Reno spoke to the same needs. With regard to cybercrime,

cyberterrorism, weapons of mass destruction, and credible forensic standards, the Attorney General suggested that Federal agencies might be able to help State and

local units of government through regional efforts to provide the training and technol

ogy that local agencies otherwise could not afford.

In truth, veterans of law enforcement remember a time when cooperation and

coordination between Federal and State and local law enforcement officials counted

almost as unacceptable professional behavior at both ends of the spectrum.

Cornelius J. Behan, former police chief in New York City and Baltimore, told the

Commission:""

Because I span more than 50 years in law enforcement, I remember when the

cooperation between a Federal and local law enforcement agency was very

wealc Information was a one-way street. When we gave anything to them, it

was like it was going into a Black Hole. Competition was fierce and the level

of trust was marginal at best.

But, continued Chief Behan: 56 Now, cooperation between Federal and local police agencies has never been

better. We work together on criminal investigations. We have joint training

programs .... [Local police] work with INS, DEA, the FBI, Secret Service,

Customs, other Federal and local police to prevent and solve crime .... [T]ask

forces exist all over the country. Without the Federal police, these forces

could not be effective. In fact, they may not exist at all.

The Commission is convinced that cooperation between Federal law enforcement

agencies and their State and local counterparts is today better than it has ever been.

But establishing a benchmark against the poor performance of the past is insufficient.

Given the gravity of the challenges ahead and the stakes involved, quantum improve-

ment is called for in this entire area.

CONFUSION ABOUT ROLES AND MISSION

With respect to agency roles and missions, several key problems stood out in the

Commission's review of responses to its survey of 14 agencies:" • Mission statements show little uniformity in terms of the information they

provide or the functions they describe;

• Most mission statements are quite paroclria!, often couched in terms that

make more sense to t11e internal constituents of tl1e agency than to other

agencies of the Federal Government, the general public, or State and local

law enforcement officials;

• Although prevention emerges as a primary issue in testimony and conversa-

lions about the Federal role, it receives little attention in nrission statements,

which for the most part focus on stopping crimes about to occur or launching

investigations after the fact;

If mJsswn statements were talcen at face value, one might conclude that either

the DEA or a part of the FBI is unnecessary because both agencies seem to

have the same nrission witl1 respect to illegal narcotics,

Other data revealed in the Commission's survey are equally troubling, offering many opportunities for serious law enforcement problems in the years ahead, In this 57 regard, the responsibilities listed under agency nrission appear to be far beyond the staffing capabilities of many agencies. In fact, there appears to be little relationship between agency responsibilities and tl1e capacity to carry them out. The Commission wonders, for example, if tl1e Bureau of Indian Affairs is not understaffed for its responsibilities and whether tl1e U.S. Secret Service is prepared to deal with what nright become an explosion of counterfeit money around the globe in the years to come as con men harness the ubiquitous power of the computer to the age-old task of creating something out of nothing.

Given the current and projected growth in international crime, the uncoordinated nature of these activities in tl1e international area is especially troubling. An in-depth

1996 review of the roles and capabilities of tl1e United States intelligence community concluded:"'

[T]here is no single coordinator for the law enforcement community,

Whether the issue concerns formulating an overall U.S. response to global

crime, facilitating cooperation with the Intelligence Community, or coordinating law enforcement activities abroad, there is no single focal point within

the law enforcement community authorized to represent its views. This

makes policy decisions more difficult and coordination more burdensome.

INSPECTORS GENERAL

Additionally, the Commission is concerned about the dual jurisdictional authority of

the various Office of Inspectors General (OIGs) in the Federal Government. This

dual authority carries with it genuine potential for confusion about role and mission.

Since passage of the Inspector General Act of 1978, some 60 OIGs have been estab-

lished. The OIGs not only investigate waste, fraud, and abuse, but also have law

enforcement authority to conduct criminal investigations and to malce arrests. As

Inspector General Michael R. Bromwich stated in 1997 regarding criminal investiga-

tions procedures, "The procedures we follow in conducting a criminal investigation

are the same as those followed by any other law enforcement agency within the

Department of Justice."43 58 Law enforcement authority with the OIGs extends not only to Federal employees but

also to others outside Government. The independence of OIGs as mandated by

Congress from program operations and from management within a department can

become a future problem area without coordination and oversight of IG actions.

Vice President AI Gore's Report of the National Pe1fonnance Review (1993)

made the following observations on reorienting the Inspectors General:"

At virtually every agency he visited, the Vice President heard Federal em-

ployees complain that the IGs' basic approach inhibits innovation and risk

taldng. Heavy-handed enforcement-with the IG watchfulness compelling

employees to follow every rule, document every decision, and fill out every

form-has had a negative effect in some agencies.

For fiscal year 1996, the General Accounting Office reported a total of 1,834 full-

time Federal officers authorized to carry firearms and malce arrests in 20 offices of the

Inspector General. In 1997, the Inspector General for the Department of Justice

reported that the OIG employed 129 Special Agents. That office has jurisdiction to conduct or oversee misconduct investigations in most components of the Department.

The Office of Professional Responsibility has jurisdiction for investigating miscon

duct allegations against departmental attorneys, but the FBI and DEA retain tl1eir

respective Offices of Professional Responsibility. The Inspector General of the

Departtnent of Justice must receive permission from the Deputy Attorney General to

investigate an FBI or DEA matter.45

OIG operations outside the Department of Justice are similarly large and com-

p!ex. At the Department of Housing and Urban Development (HUD), for example,

the OIG may have between 200 and 260 Special Agents by the end of 1999. 46 OIG

Special agents in HUD investigate possible violations of criminal statutes using

· ·--te-chniques sucli as mterv1ews, surveillance, electronic monitoring, search warrants,

and subpoenas."' These agents participate in tactical operations with local police and

oilier Federal agents to eradicate drugs and respond to criminal acts in Federal

housing."' In HUD and elsewhere, the danger exists iliat the benchmark for success in

OIG offices may soon tum from the soundness of administrative investigations to the 59 number of arrests.

CONCLUSIONS

Based on its review, the Commission concludes that:

• Of necessity, the Federal law enforcement apparatus is large and com-

plex. Different agencies often properly have different missions, and ilie need

for quite distinct skills and areas of jurisdiction. Better coordination is

necessary and desirable, and some consolidation is required.

• Capacity for oversight and coordination is weak and must be improved.

As a policy matter, it is difficult to know who is in charge of what. Coordina-

tion is relatively effective because the people involved are determined to

malce their agencies work. Neverilieless, with issues of citizen safety and

national security at stalce, effective cooperation and greater clarity of roles

and responsibilities should not be left to chance. Despite tl1e 30-year exist

ence of Executive Order No. 11396, which designated the Attorney General as the focal point of Federal law enforcement, little has been done to imple-

ment its provisions.

• The proliferation of small agencies needs attention. Because of the

complexity of agency missions and functions, the Federal Government has

encouraged a proliferation of small Federal law enforcement agencies, many

with their own investigative or policing powers and their own concepts of

appropriate procedures and policies.

• The functions of Inspectors General have not been well integrated into

Federal law enforcement activities. A clear need exists to examine the

growth and role of the function of the Inspectors General in terms of duplica

tion of effort, whether the Inspectors General should exercise arrest functions,

and adequacy of training. This examination should also consider the extent

to which it is appropriate for the OIGs to combine functions of program

review for purposes of public accountability (rarely a true Federal law

60 enforcement issue) and "internal affairs" functions for allegations of misconduct on the part of law enforcement officers.

The Commission bases its conclusions and recommendations in part on these

findings. CHAPTER THREE. TERRORISM

l-J f the death of six people and the injury of more than I ,000 from a car-bomb H Llplanted by Islamic fundamentalists in New York's World Trade Center in 1993 were not a sufficient wake-up calJ, Americans were reminded of the terrible new reality of domestic terrorism the folJowing year. On Aprill9, 1994, an American veteran of the Persian Gulf War destroyed the Federal Building,_r'c'·n,_O""k"'lah.,.,o"'m"'a'-C'-'"'.ty.lO,, ______killing 168 people, injuring hundreds, and wrealdng untold havoc on the Nation's sense of self, sense of security, and confidence in government.

Little is new in terrorism. It has always been a weapon of those attempting to effect change through violence. It provides very high leverage at very low cost, 61 enabling nations, international groups of various kinds, and subnational, even marginal, groups to bypass traditional, political, diplomatic, military, and economic channels and demand a place at the table. Despite how the press has treated recent incidents, the United States has been struggling with terrorism of one kind or another for decades. In fact, at the international level, although the number of people kilJed as a result of terrorism increased in the 1990s, the number of terrorist incidents actually declined.

What is new, however, are the implications for the United States. Although terrorism experts debated for years the likelihood and possibility of major terrorist incidents within the United States-including the use of weapons of mass destruction-the arguments have now ceased. The bombings at the World Trade Center and in Oldahoma City, the sarin gas attack in Tokyo, and the ricin scare in Wisconsin ended the debate. The issue is no longer whether such attacks can be launched, but how to prevent them. A major threshold has been crossed, at great cost to the Ameri- can sense of self and confidence in national security. Terrorism has changed in recent years, marching in lockstep with larger changes

in the world. A growing number of new international terrorist organizations (some

abetted by nation-states and a growing number of domestic special interest groups

intent on pursuing ideological agendas within the United States appear to have

become more violent in their methods. One of the most troubling aspects of these

new developments is the increasing sophistication of terrorism, both at home and

abroad, in terms of technology, operations, and financing-a sophistication that

Federal, State, and local law enforcement agencies are often hard-pressed to match.

The face of terrorism, once considered in popular imagination to be largely

foreign, and grounded in xenophobia and religious fundamentalism, is now revealed

to be equally at home in America, where it appears to be grounded in a violent,

antigovernment, paramilitary subculture on the extreme Right. This subculture

demonstrates a xenophobia of its own, convinced that their beliefs are at risk in a

modem state that intends to abrogate their definition of their rights.

62 Domestic terrorism in America has come full circle. Antigovernment violence in

the United States in the 1960s and 1970s had been characteristic of the radical Left,

of such groups as the Weathermen and the Black Panthers. The Left was inclined to

speal( of the United States as fascist, employing such symbolic terms as "Am erika" to

make its point. The most radical of these groups and individuals thought nothing of

creating potentially violent confrontations during the years of the Vietnam War or of

destroying facilities associated with "Amerika's war-making capacity," such as a

mathematics building on the campus of the University of Wisconsin.

But the new domestic terrorism comes mostly, but not exclusively, from the

Right. (See sidebar, "Terror and Violence in America: A Catalog of Horrors," for

some sense of the breadth and extent of this threat, which also includes damage to

property from animal rights and environmental activists.) And in a peculiar inversion

of roles and language, the U.S. Government again finds itself charged with destroying

citizens' rights and maintaining jack-booted troops, only this time the charges are

leveled by a variety of groups, including skinheads and neo-Nazis who have purloined

the Left's language for their own purposes. Terror and Violence in America: A Catalog of Horrors

Recent years have borne witness to a startling increase in terrorism and violence in the United States. Examples of such Incidents include the following: 1992 White supremacist Gordon Sellner wounds a deputy in Montana and becomes an "open fugitive" on his ranch; the Bureau of Land Management building in Reno, Nevada, is bombed; eight members of the Pilot Collection Society-the Nation's largest tax protest group-are arrested lor defrauding people of millions of dollars; Vicki and Sammy Weaver, the wile and son of Randy Weaver, are shot and killed during a standoff with Federal agents at Ruby Ridge, Idaho. Deputy U.S. Marshal William Degan was also shot and killed. 1993 Mir Aimal Kasi kills two and injures three outside CIA Headquarters in Virginia; a car bomb at New Yorl<'s World Trade Center kills six and injures 1,000; the 51-day siege at the Branch Davidian compound ends with a death total of 92, including lour Federal agents; eight suspects, from a variety of neo-Nazi groups, are arrested in Los Angeles lor plotting to start a race war; pipe and lire bomb ings of the NAACP building and a gay bar in Tacoma, Washington, are accomplished by American Front Skinheads; the Animal Liberation Front lire bombs several major department stores in Chicago. 1994 California clerk/recorder Karen Matthews Is brutally beaten at her home by a group of antigovernment extremists when she refuses to file their bogus legal documents; four members of Blue Ridge Hunt Club in Virginia are arrested lor planning to attack National Guard bases If the Government ever ____,plans_gll!LConfiscation;..two_members_oUba.Minnesota-P-atriotS-Council-are-convicted-fo,cplanning-to--····· use a toxic biological substance, ricin, to kill Federal law enforcement officers; Timothy McVeigh and Terry Nichols bomb the Murrah Federal Building in Oklahoma City, killing 168 and injuring hundreds. 1995 Members of the North American Volunteer Militia are arrested for threatening judges in Montana; a pipe bomb destroys the car of a Forest Service official in Nevada; four members of the Oklahoma Constitutional Militia are arrested for plotting a bombing campaign against gay bars, abortion clinics, and welfare offices. 1996 Louis Edward DeBroux, a "constitutionalist," pleads guilty to plotting to kill a Georgia judge as a warning to other judges in the State; prosecutions begin against the Aryan Republican Army for its 63 role In 20 bank robberies in the Midwest to finance a revolution; 11 members of the Constitutional Common Law Court are charged in Tampa, Florida, with threatening Federal judges; Federal and State authorities endure an 81-day standoff, in remote eastern Montana, before arresting 24 mem bers of the Montana Freemen; 12 members of the Arizona Vipers militia are arrested on weapons and explosives charges; lour members of the Washington State Militia and four ·~reemen" are arrested on bomb-making charges; a bomb explodes in the midst of the Olympic Games in Atlanta and an antigovernment extremist Eric Rudolph, still at large, is named a suspect in that bombing." 1997 In Tulsa, three "common-law court advocates" plead guilty to filing bogus liens and "arrest warrants" against IRS agents and other Federal officials; the Kehoe brothers, convicted lor their roles in two shootouts with Ohio police, are charged with murder in their attempt to establish an Aryan People's Republic; the FBI arrests four members of the Texas Klan group for planning a gas refinery bomb attack and armored-car robberies to finance activities; Federal agents arrest members of the Colo rado First Light Infantry on weapons and explosives charges; the IRS field office in Colorado Springs is bombed; "sovereign citizen" Carl Drega embarks on a murderous rampage in New Hampshire, killing two State troopers, a part-time judge, and a newspaper editor, before dying In a firelight at his home, which contained a huge arsenal of explosives and pipe bombs. 1998 Several members of the North American Volunteer Militia are arrested lor criminal activities in Montana, Including threatening judges; lour members of the Oklahoma Constitutional Militia are arrested lor plotting a campaign of bombings against gay bars, abortion clinics, and welfare offices; members of the white supremacist group, The New Order, are charged with a wide-ranging plot to bomb public buildings across the country; three Texas white supremacists are charged with killing a black man by dragging him behind their truck until his body tears apart; a bomb-laden pickup truck is discovered in the basement of the courthouse in Tippecanoe County, Indiana; an Internet web-page begins soliciting for the assassination of lour Federal officials. 1999 Two teenagers enter Columbine High School in Littleton, Colorado, and launch a lethal fusillade of gunfire and explosives, killing 14 students and one teacher, before taking their own Jives, the sixth school shooting around the country in the past 36 months.

Sources: State/Local Anti-Terrorism Training Program and Harvey W. Kushner (1998), Terrorism in America, Springfield, IL: Charles C Thomas Publishers, Ltd. Our law enforcement capabilities, Federal, State, and local, have been struggling

with these issues for some time and are likely to be troubled with them well into the

future. Now the challenge becomes more complex. The situation poses a real threat

to American citizens, one turned violently real in recent years at such diverse loca-

tions as the World Trade Center, Oldahoma City, and Kenya and Tanzania.

The relatively easy access that determined terrorists have to weapons of mass

destruction (chemical, biological, even nuclear) has been demonstrated any number

of times in recent years. The truck bomb detonated in Oklahoma City was made up

largely of common chemical fertilizer wired with detonators. The 1994 conviction of

members of the Minnesota Patriots Council revolved around their plan to manufac

ture and use a deadly biological toxin, ricin, to ldll Federal law enforcement officers.

A possibility that unnerved many law enforcement specialists around the world was

the poison gas attack involving sarin launched in the Tokyo subway system in March

1995. That attack was launched by a secretive religious cult, Awn Shimykio (Su- 64 preme Truth), headed by Shako Asahara: It left 12 dead and made 5,000 ill.

If the notion of criminal access to nuclear devices appears farfetched to the

average citizen, the idea is not at all outlandish to law enforcement officials and

academic experts. According to a paper prepared for the Commission by terrorism

experts Frank J. Cilluffo and Michael Paul Palaschak:50

The barriers to the acquisition and deployment of nuclear devices are diffi-

cult, but have been significantly lessened by the end of the Cold War. This is

particularly true with respect to a crude radiological device, which would not

require a sophisticated delivery system. Perhaps the single easiest method

for a terrorist group to acquire a nuclear or radiological device would be to

purchase or steal it from a nation with current stockpiles.

Several tactics appear to characterize most domestic terrorist activities: assaults

on law enforcement officials; assembling illegal weapons and weapons caches;

bombings; financial crimes, including counterfeiting and bank robbery, to finance

extremist activities; intimidation of judges and other public officials; and standoffs

involving antigovernment extremists. INTERNATIONAL TERRORISM IN THE UNITED STATES

Meanwhile, the threat of international terrorism within American borders continues unabated. In discussing these issues with the Commission, Attorney General Reno expressed the view that terrorism-both domestic and international-is clearly going to be one of the frontline issues for Federal Jaw enforcement in the years ahead. 51 FBI

Director Freeh reiterated this view to the Commission : "With respect to current activities, terrorism, botl1 international and domestic, has become a critical part of an expanded FBI mission .... This has given to the country and to the FBI... vast new challenges .... "" In response to these challenges, he reported, the FBI has created 18 joint Terrorism Task Forces around the Nation, unique entities made up of the FBI

~~and-other-FederaJ,-State,-and-Jocal-officers-assigned-to-the-taslcuf;-frrst;-preYeTiling -~------~ acts of terrorism, and, second, responding to tl1em if they do occur.

According to the Cilluffo and Palaschak paper, the United States and its allies need to worry about three major kinds of international terrorist organizations: 65 • State sponsors of terrorism, such as Iraq, Iran, Syria, Libya, North Korea, and

others, that use terrorism as a tool of statecraft;

• Formal terrorist organizations, often transnational in nature, with political,

national, ethnic, and religious agendas; and

• Loosely affiliated extremists and freelancers, perhaps the most difficult to

define and defend against because they build ad hoc alliances and organiza

tions and are nearly impossible to penetrate.

It appears quite clear that international terrorism has also changed dramatically.

Just a decade ago, most terrorist organizations were linked indirectly or directly to the former Soviet Union and nations allied with it. Terrorism across the globe reached its peak 10 years ago; the past several years have seen the lowest levels of terrorist activities, internationally in 2 decades (see Figure 4). Through diplomacy, intelligence operations, military strikes, and Jaw enforcement, the ability of outlaw States and groups such as Libya to engage in terrorism has been reduced and groups such as the Irish Republican Army and Basque terrorists have reduced their activities. 53 Figure 4. Attacks by International Terrorists, 1979-1998

a: ;;] >- 198

0 100 200 300 400 500 600 700 800 NUMBER OF TERRORIST ATTACKS

Source: U.S. Department of State Publication 10610, Office of the Secretary of State, Office of the Coordinator for Counterterrorism, released April 1999. "Patterns of Global Terrorism." See http:www.state.govjwww/global/terrorism/ 1998Report/p.gif.

"Things indisputably are better today than they were in the mid-eighties when we saw

airplanes blown from the sky, embassies bombed, and ships hi-jacked," said a former

U.S. ambassador to Colombia with 34 years of Government service."

According to Cilluffo and Palaschak:55

While state-sponsored terrorism (most notably from Iran) continues to be an

important issue, more often than not today's international terrorist lacks the

political agenda of their classical counterparts. Religious divisions, ethnic

hatreds, and sheer financial profit are also strong motives for terrorism,

ushering in both a new era in destruction and a nonlethal form of terrorism,

cyberterrorism. The Secretary of State has designated some 30 groups (ranging from the Armed

Islamic Group and the Democratic Front for the Liberation of Palestine-Hawatmeh

Faction to the Revolutionary Armed Forces of Colombia and Shining Path) as foreign terrorist organizations. In addition, target selection has shifted from Government facilities toward U.S. business interests. Department of State figures indicate that more than 75 percent of global terrorist incidents in 1995 and 1996 targeted business operations, corporate personnel, or both. Cilluffo and Palaschalc conclude that "by continuing to ratchet up security at embassies and other high-profile Government facilities ... , the risk is merely displaced, forcing terrorists to ... select from the endless number of other soft targets." 56

___W.ll

Anti-American Terrorism Abroad

Terrorism against Americans abroad, although perhaps not as widespread as terrorist incidents at home, is equally troubling. Violent terrorist bombings on August 7,

1998, against U.S. embassies in Kenya and Tanzania killed 247 people in Nairobi

(including 12 Americans) and 10 in DarEs Salaam, all local people. The two blasts injured thousands of people between them.

Coordination Challenges

Although the Commission received no testimony from U.S. intelligence agencies, it seems clear that a number of sources of conflict exist between the law enforcement Terror Around the World: A Global Catalog

The Incidence of terrorism around the globe demonstrated a steady increase from the late 1970s through the later years of the 1980s, with incidents such as the Lockerbie air disaster that shocked the sensibilities of the world. Since then, a fairly steady decrease has been in evidence, thanks in part to diplomacy, the develop ment of extradition treaties and transnational agreements, and reduced activity on the part of some organiza tions, such as the IRA and several Middle Eastern organizations, with a history of relying on terror as a means of advancing their ends. In sheer numbers, the incidence of terror is now the lowest in 2 decades. Fewer incidents, however, do not mean less terror. Although State Department figures for 1998 record the lowest number of attacks since 1971, the number of persons killed and wounded in that year was the highest on record(741 dead and 5,952 injured). Recent examples of terrorist activities around the globe include: 1996 219/96 IRA claims responsibility for detonating a bomb In a parking garage in the Docklands Area of London, killing two people and wounding more than 100, including two American citizens. 2-3/96 Suicide bombers from the Islamic Resistance Movement (HAMAS) blow up buses in Jerusalem, killing 35 and injuring scores, and engage In a suicide bombing outside a Tel Aviv shopping mall that kills 25. At least five American citizens are killed in the three attacks. 6/25/96 A large fuel truck explodes outside the U.S: military's Khubar Towers apartments near Dhahran, Saudi Arabia, killing 19 Americans and wounding 500 others. 12/17/96 Peru's Tupac Amaru Revolutionary Movement takes over the Japanese ambassador's residence in Lima and holds 500 hostages-428 of the hostages are freed quickly. It Is 4 months before a Peruvian assault team ends the siege, freeing the remaining 78 hostages and killing. their captors. 68 1997 2123/97 The body of U.S; mining consultant Frank Pescatore is discovered some 2 months after he is taken prisoner by the Revolutionary Armed Forces of Colombia. 21 23/97 A gunman intent on punishing the "enemies of Palestine" enters the observation deck of New York's Empire State Building and opens fire on tourists. ·A Danish visitor is killed and tourists from Argentina, France, Switzerland, and the United States are wounded before the. gunman turns his gun on himself. 4/97 Just hours before Pope John Paul II lands in Bosnia, police discover and defuse 23 landmlnes set along the route he is scheduled to travel to Sarajevo. 11112/97 Four U.S. citizens, employees of Union Texas Petroleum, and their Pakistani driver are shot and killed one mile from the United States consulate in Karachi. 11/17/97 Six gunmen enter the Hatsheput Temple In Luxor, Egypt, and for 30 minutes methodi cally shoot and knife tourists trapped In the temple's alcoves. The murdered include 58 foreign tourists, 3 Egyptian police officers, and 1 Egyptian tourist guide. 1998 B/98 Devastating bombings occur at the. U.S. embassies in Nairobi, Kenya, and Dares Salaam, Tanzania, killing 291 and injuring some 5,000 In Kenya, with 10 fatalities and 77 injuries in Tanzania. · B/98 The "Real IRA," a splinter organization disaffected with the parent group's participation in talks about peace and forming a government, detonates a car bomb in a crowded village in Northern Ireland, Omagh, killing 35 people and injuring hundreds. Year-long A multinational oil pipeline regarded as a U.S. target by Colombian terrorists is bombed :!> 2 77times. 0

"'Q Source: U.S. Department of State, annual reports on 'global terrorism; and U.S. Department of State Publication 10610, ):;;; Office of the Secretary at State, Office_ of the Coordinator for Counterterrorlsril, released April 1999. "Patterns of Global Gl2 Terrorism." htlp:www.state.gov/www/global/lerrorism/1998Report/p.gif t:! ;;\ :e; 0 tv F 0 and intelligence communities57 The expansion of the presence of law enforcement

agencies overseas, principally the FBI, creates its own set of tensions. In fact, the

Commission received testimony that as many as 2,000 Federal law enforcement

agents are operating overseas, frequently without effective coordination with either

the intelligence agencies or the Department of State."

Cyberterrorism

Finally, the issue of cyberterrorism needs to be acknowledged. New information

technologies have revolutionized professional and middle-class lives around the

world, transforming the way people learn, shop, entertain themselves, and manage

· iheir-financiar affairs. Moreover, the pace of change is so rapid that personal comput

ers are literally becoming twice as powerful, at half the cost, about every 5 years.

College students today have more computing power on their desks than was available

to the scientists and generals who put men on the Moon and waged war in Vietnam a

generation ago. 69

In this environment, clear risks accompany the evident benefits. In the following

chapter, the Commission will touch on the extent to which the Nation's power grids

and systems such as finance, banking, and transportation are susceptible to

transnational crime. Here we want simply to note that they are likewise vulnerable to

international terrorists.

CONCLUSIONS

Based on its review, the Commission concludes that:

• Terrorism threatens the Nation's security. Keeping America secure in a

new century will require additional resources and assets for intelligence

collection and analysis, long-term research on how to improve domestic

preparedness for terrorist threats, and a commitment from Federal intelli

gence-gathering agencies (domestic and international) to share information,

as appropriate, with State and local law enforcement officials. • Coordination abroad among agencies and law enforcement officials must

be improved. Effectively administering law enforcement and protecting

American citizens from the threat of terrorism demands better coordination of

Federal law enforcement officials and agencies abroad.

• Responses must be long-term instead of crisis-oriented. Congress and the

President must develop policy-relevant, long-term responses rather than

yielding to the temptation to ignore these issues until a crisis develops and

emergency responses are required.

The Commission proposes reforms to address these concerns in its recommenda-

tions in Chapter Seven.

70 CHAPTER FOUR. GlOBALIZATION OF CRIME

r r !' 1 l-":1 ike American crime syndicates, criminal enterprises in Europe, Asia, Latin :·_,j C::c:rrJAmerica, and the former Soviet Union have brought a new capacity for orga-

nized, large-scale crime to their own citizens. Frequently cooperating with each other

across national borders in areas such as narcotics, weapons, money-laundering,

___ tra_nsf>D,t:tati_oii_()j'j!l,; gfli_>J]j.,_n_s_f!n_'_'i,_QLQs!it_!Ition ,_stolen _auto moe

biles, and counterfeit goods, these national syndicates have created a criminal coun-

terpart to the globalization of commerce.

International crime carries with it very high costs for nations and societies. It is a

threat to global trade and undermines international investment. The cost to society is 71 enormous, and growing public concern about the implications of transnational crime

has encouraged governments to focus on law enforcement strategies designed to deter

and minimize it. According to recent reports from international organizations, the

United Nations and the International Monetary Fund estimate that drug trafficking

alone generates up to $500 billion annually in c1iminal proceeds. Much of this

money, laundered through numerous fake companies and anonymous bank accounts,

finances additional criminal and terrorist activity.

Witnesses before the Commission suggested that global crime may be fast

becoming the gravest threat to law enforcement not simply at the Federal level in the

United States but at all levels of law enforcement here and elsewhere. Commenting

on the growth of transnational crime, then Secretary of the Treasury Robert E. Rubin

testified that, although for the purposes of law enforcement, the concepts of national

boundaries and nation-states appear to be sensible, they obviously mean nothing at all

to criminals." In a similar vein, Attorney General Reno told the Cornmission:60 I think borders are shrinking. In some instances, they are being eliminated.

It is imperative that law enforcement be prepared to deal with crime and its

international consequences. If the computer becomes the tool rather than the

gun, the FBI is going to have to be able to work with agencies around the

world to track down where the intruder is, who's doing it. We're going to

have to develop common statutes and common laws to address the problem.

We're going to have to have common understandings as to who prosecutes

and ensure that there is prosecution.

Oliver B. Revell, a 30-year veteran of the FBI with experience in national and

international security matters, told the Commission:"

I truly believe that, in the 21st century, transnational crime .. .is going to be

perhaps the preeminent threat to the United States and in fact... the democra-

cies of the globe. Very frankly, we are ill-prepared to deal with that. Not

only do we have [approximately] 17,000 local agencies, [which] are prima-

72 rily focused on crime in their neighborhoods, and in their municipalities and counties ... but we have ... the proliferation of...Federal statutes ... [that] have

diminished the significant role the Federal law enforcement [agencies] must

play in those areas beyond the reach and scope and jurisdiction of local and

State agencies.

Some countries are virtual safe havens for organized, transnational criminal

groups. "Perhaps the most astonishing attribute of transnational crime today," report

Cilluffo and Palaschak, "has been the ability to form alliances between criminal

counterparts throughout the world." They continue:"

Russian mobsters were arrested meeting with senior Italian organized crime

figures at a ski resort in Italy in April 1997, allegedly to plan more efficient

means of laundering the illicit proceeds of their narcotics sales in Western

Europe. In 1996, investigators for the U.S. Customs Services found Burmese

suppliers shipping heroin to Chinese middlemen, who included some coun

terfeit software and shipped it to the United States, where it was distributed

by Vietnamese street gangs. In April of 1998, Colombian drug smugglers were arrested in Russia as part of a complex scheme to smuggle cocaine by

ship through Sweden and Finland and by air from Italy.

Because of its immediate frightening impact and potential for large numbers of casualties, terrorism receives more public attention by far in the United States than the internationalization of crime. Nonetheless, transnational crime may be the more insidious, long-term, domestic threat. Invisibly operating behind the scenes, it threatens to undermine the American financial system, disrupt our borders, put our streets at risk, victimize low-income and immigrant communities in the United States, and strain relationships among allies. A national-level declaration of transnational crime as a direct threat to national security must not only be articulated but implemented.

NARCOTICS AND GLOBAL CRIME

Narcotics and narcotics trafficking is one of the engines driving international crime.

By any standard, the criminal narcotics industry ranks an1ong the wealthiest and most powerful multinational "business" enterprises in the world, grossing an estimated 73 $500 billion armually. Its leaders are inventive, flexible, and ruthless. They are primarily motivated by profits and greed, although in some instances they pursue political power to protect their criminal empires or, in rare cases, to support larger ideological, even terrorist, objectives.

Given the immense profits to be made in narcotics, drug cartel leaders have pumped extraordinary amounts of time and money into efforts to protect their profit able bases of operation from risk. Although practice varies from group to group, recent findings indicate increased sophistication in the protective capabilities of the narcotics indnstry. These sophisticated efforts include, but are not limited to:"

• Bribery, corruption, and intimidation of government officials at all levels,

including law enforcement and border patrols, security services, defense

agencies, and community and national political leaders

• Assassination, coercion, and extortion;

• Acquiring top-of-the-line weaponry, training militias and security personnel,

providing other forms of physical security, and supporting a variety of

operational security measures and countermeasures; • Procuring state-of-the-art technologies, frequently export-restricted technolo-

gies, and recruiting specialists to launder money, create and manage sophisti-

cated databases and telecommunications systems, manage

countersurveillance, and perform other intelligence-collection activities;

• Employing the latest information-security applications and cryptography to

secure command, control, communications, and logistics data;

• Creating logistical infrastructures, including personnel, in source countries,

transit zones, and destinations, including the United States; and

• Responding flexibly to U.S. law enforcement measures and countermeasures.

These cartels act like mini-governments in tl1eir nations of origin. In many ways,

that's what they are.

In the face of these developments, although the Nation's countemarcotics efforts

continue to increase annually, spending priorities have been changing dramatically.

Cilluffo and Palaschak note tha~ with the fall of the Soviet Union and the rise of 74 democracy in Latin America, U.S. drug-related aid in Latin America has fallen

precipitously. Between 1992 and 1995, for example, drug-related aid to the Andean

region fell from $470.3 million to $131.8 million. The thinking appears to have been

that, because tl1ese nations were no longer targets for Soviet subversion, their leaders

could handle the problem without additional assistance. Moreover, the inteJiigence

community appears to view narcotics trafficking as a health or Jaw enforcement issue,

not as a security issue.

Narcotics are, of course, a health and law enforcement issue, but they are a

security issue as well. Few problems affect our society as deeply as drugs. They

divert funds from productive activities, encourage violence, and corrupt American

institutions. More than 14,000 people die each year in the United States from the

scourge of drugs. About one-third of all AIDS cases are drug-related, at a cost to the

U.S. taxpayer of about $70 billion annually. And one-third of all crimes, including

more than 70 percent of violent crimes, are drug related.

Unfortunately, common protocols for dealing witl1 these new situations have yet

to be developed. In the main, neither American Jaw enforcement agencies nor those in other countries are prepared to deal with these consequences of international crime, largely because most of these developments are so new, And American law enforcement agencies are further distracted from these grave new responsibilities by the need to enforce statutes creating Federal offenses out of such things as street crime and domestic violence."

Cyberspace-A New Frontier

Criminality in cyberspace is the new frontier of law enforcement. As a new century dawns, cybercrime and cyberterrorism, even cyberwmfare, loom as distinct threats to

Federal law enforcement, and to law enforcement at all levels-Federal, State, and locaL In the face of these challenges, too many citizens, public officials, and law enforcement leaders act as though the tools and techniques that carried this Nation through the 20th century will suffice in the 21st. In the judgment of this Commission, they will not.

The process of maintaining community tranquillity, individual security, and 75 personal property can no longer be defined solely by police officers on the beat, FBI agents conducting interviews, or Customs officials at airports and border crossings.

New information technologies can outflank and out maneuver every traditional law enforcement technique. Putting more police officers on American streets will do little to deter criminals like the "hacker" who stole millions of dollars from a bank in New

York witl1 little more than a few key strokes from a personal computer in St. Peters- burg, Russia.

The Internet may be the new Information Superhighway, but it also offers a broad thoroughfare to criminal riches, As millions of Americans open on-line trading accounts and surf the Web, professional looking sites cleverly dangle phony get-rich- quick schemes in front of them. Technology and Internet scams and crimes are pro! iferating:

• The SEC's Internet cyberforce investigates approximately 100 complaints

about scams daily, Many of these frauds (such as the Web site that touted a

phony high-tech startup, complete with SEC approval and a partnership with

Microsoft) are extremely sophisticated." The phony site in question pulled in $190,000-- including $10,000 wired from Hong Kong-before it was

shut down.

• The Internet offers regulatory safe havens that are potentially more lucrative

than mere post office boxes located in the Caribbean, the South Pacific, the

Mediterranean, or Southern Afiica.66

• Federal investigators have come across at least two virtual jurisdictions,

nations that are not really nations but advertise all of the services of coun-

tries, including citizenship, identity papers, passports, banking, securities,

telecommunications, and real estate services. One of them apparently was

briefly recognized by the 1996 Atlanta Olympic Committee.67

• When the Defense Information Systems Agency (DISA) launched 38,000

hacker attacks against its own systems to test their vulnerability, only 4

percent of the people in charge of the systems realized they were under attack

and only 1 out of 150 reported the attack to their superiors."

76 • The Y2K phenomenon may become more than a technical problem, if

criminal elements become involved in it. Evidence has surfaced that orga-

nized crime has recruited programmers who are hired out to "fix" Year 2000

computer problems so that the computers of unsuspecting customers can be

programmed for theft or extortion."

• In a 1997 war game directed by the intelligence community, 35 computer

specialists, using tools freely available on the Internet, "shut down" large

segments of the Nation's power grid and silenced the command-and-control

system of the Pacific Command in Honolulu.70

In light of these findings, it is hardly surprising that results from a survey con

ducted for the Commission show that in the United States, computer crime elicits

almost as much public concern in the United Sates as cmjacking or organized crime."

HIGH-TECHNOLOGY CRIME

The rapid development of modem technologies supports the globalization of crime.

As the 1990s dawned, t11e Internet scarcely existed as a means of public communication. But as the decade draws to a close, many law enforcement experts wony that it is rapidly becoming one of the greatest potential avenues for criminal activity ever created, encouraging confidence artists, scams of all kinds, child pornography, and new avenues for fraud and theft. It can also open new avenues for financial wrong- doing in the form of computerized theft, the manipulation of prices of stocks and bonds, and the development of fraudulent financial instruments and certificates. As electronic commerce continues to grow on line, it is safe to assume that criminal activity will grow with it.

It is already clear that modem telecommunications and computers make large- scale theft and fraud possible from keyboards anywhere in the world. A generation ago,-FBI-Academy·students·received-arevolverwith·sixrounds-whentheygra:duated:

Today, they also receive a laptop computer. If a hacker in Bucharest or Dublin steals from a San Francisco bank by transferring funds illegally using computers, who is responsible for investigating, arresting, and prosecuting such fraud?

Offering examples of how new technologies and telecommunications equipment 77 have expanded the possibilities for global crime, FBI Director Freeh reported to the

Commission:72

Beyond the terrorism area in organized crime ... we are increasingly focusing

on crimes of an international and transnational nature. A case recently

[occurred] where an individual using a laptop computer in St. Petersburg,

Russia, broke into a New York City bank and moved several millions of

dollars before it was even detected. Another individual overseas using a

laptop computer...broke into "911" [emergency police and fire] systems in

northern Florida and shut them down for several hours.

Security was never a major consideration among the loose coalition of universi- ties, think tanks, high-technology t1rrns, and Defense Department supporters who put together the Internet and its predecessors such as ARPANET. Our ability to communicate has far outpaced our ability to protect new communications systems, and loopholes abound in the complex, jerry-built system of networks known today as the

Internet, really an accumulation of networks tied into and built on top of each other. Practically every major area of our national life today depends on computers and

information technologies. Telecommunications systems themselves, power grids,

finance and banking, transportation, health care, aircraft control systems, and so on-

all depend on the computer and information lines. In consequence, the United States

is not simply uniquely susceptible to computer crime, it is also uniquely vulnerable to

cyberterrorism. It is well within the capabilities of talented "hackers" to bypass

institutional security provisions and completely disrupt operations of financial

institutions or major systems associated with local law enforcement or national

security.

With respect to criminal behavior, we should think of the computer in the year

2000 as the equivalent of the automobile in the 1930s, suggested FBI Director Freeh

to the Commission. Both the automobile and the computer are neutral objects, but

both, in their time, represent the application of the latest technology to crime. Direc-

tor Freeh said:"

78 In some ways, the use by criminals and terrorists of the computer is similar,

although much more dramatic, than the use in the early 1930s by bank

robbers of automobiles. [Automobiles represented] a new technology at the

time which was quickly exploited by the criminals to facilitate bank robber- m 2 'TI 0 ies, getting to banks quicker, getting away even quicker and eluding law ;o n m enforcement officers, who had no jurisdiction from a State point of view (or a ::5 m 2 -l Federal point of view). The law enforcement reaction to that technology was to develop not just fast cars and motorcycles, but mobile radios to deal with

what was then a very great challenge. In many ways, today the use of

computer[s] ... by criminals, terrorists, and others is directly challenging our

ability to perform law enforcement functions and also challenging the ability

of our State, local, and Federal partners.

The simple truth is that "anything you can digitize, you can steal," as Jonathan

Winer, Deputy Assistant Secretary of State, told the Commission." As Mr. Winer

described these developments to the Commission, cybercrime threats include Internet

casino gambling, financial services crime, theft of intellectual property, fraud, and regulatory arbitrage (Internet safe havens offering protection from national regula-

tion), and penetration of U.S. securities markets. "Virtual banks" such as the nonex-

istent European Union Banlc, threaten to defraud thousands of people, worldwide, of

their investment. Modern communications have even created "virtual jurisdic-

tions"-nations that are not nations at all, but simply web sites offering the services

of sovereign countries, including citizenship and identification papers, passports,

banking, real estate, and securities markets. These virtual jurisdictions, hardly likely

to be recognized by national governments, continually seek recognition from legiti-

mate nongovernmental groups.

In the face of the development of lightning-fast communications and powerful

.. computing.capacityon··thepartofa·global-criminalnetherworld;Govem:mennec ··

sponses are distinctly mixed. Mr. Winer pointed to several areas where Federal law

enforcement efforts do not match the realities of international crime: 75

• International tax laws are administered by the IRS with only six agents

located overseas; 79

• The Immigration and Naturalization Service is just now beginning to develop

"lookout technologies"-databases to help deal with smuggling by aliens;

and

• The border technologies available to the U.S. Customs Service need to be

upgraded to improve random checking of automobiles and containers as they

enter the United States.

The Commission found examples where the lack of electronic technology is due J?

not to any lack of funding or expertise, but to specific limitations imposed by statute.

One example is the important task performed by ATF in tracing firearms for other

Federal agencies as well as for State and local law enforcement officials. The trace of

each firearm must be done manually through a series of telephone calls, facsimile

transmissions, and mailings. ATF is routinely criticized for its failure to computerize

what is literally a universe of information about firearms and firearms owners. The

fact is that ATF is not the custodian of the records of the millions upon millions 76 of

acquisitions and dispositions of firearms moving in the strean1 of interstate commerce through licensed manufacturers, importers, and dealers. All such records are pre-

pared, kept, and maintained at all times at the premises of the licensee. ATF may

inspect the records, and the licensees are required to provide the trace information to

ATF, but ATF may not store firearms records nor enter any data obtained from

firearms transactions records into any form of electronic database at any government

facility.

18 U.S. C. 926(a)(3) provides in pertinent part:

No such rule or regulation ... may require that records ... maintained (by licensees)

be recorded at or transferred to a facility owned, managed, or controlled by the

United States or any State or any political subdivision thereof, nor that any

system of registration of firearms, firearms owners, or firearms transactions ... be

established ....

Despite these problems, the Federal Government can point to some notable

successes. For example, late last year the FBI put into action its National Instant 80 Check System (NICS). On the very first day of operation, NICS processed 2,100

requests for information. NICS is a combination of technologies that represent a

major advance in the science and technology of law enforcement. It is of benefit to

the FBI and to State, local, and even foreign partners because it provides near imme

diate access to criminal histories and fingerprint identification. When the system is

fully operational in 1999, it will be possible to provide a 2-hour turnaround on

criminal identification and a 24-hour turnaround on civil identifications, both of

which even recently could talce weeks or months. It is conceivable for fingerprint

evidence to be sent from a laptop in a patrol car to the FBI, with responses returned in

a matter of hours.

CYBERPRIVACY AND CYBERSECURITY

Among the major challenges confronting policymalcers in law enforcement are how

to preserve privacy in the Information Age while providing the tools to combat

cybercrime. Executive Order No. 13010 (July 1996) established a commission to

formulate a national strategy to protect the information infrastructure from outside threats, either physical or technological." After the release of that commission's

1997 report, Presidential Decision Directive 63 was issued to establish a "goal of a reliable, interconnected, and secure information system infrastructure by the year

2003 and significant increased security in Government systems by the year 2000."78

The National Infrastructure Protection Center (NIPC) in the FBI became the focal point to serve "as a national critical infrastructure threat assessment, warning, vulnerability, and law enforcement investigations and response entity.""

Since that commission issued its report, a number of problems have developed:

• Initially, a strong partnership with the private sector was envisioned. The

Government planned to help by providing funds to help information-based indusffies esta5lisfiiiifarmatian anilA.iiaiysesceiilers crsAcs), wiil1 ih~ NIPC to share information between industry and the NIPC. Some private

sector executives are said, however, to be reluctant to share information about

computer intrusions with law enforcement officials. 80 81 • Within the partnership concept, the major responsibility for protecting private

sector telecommunications systems fell on the private sector. Richard Clarke, the

Administration's lead for critical infrastructure protection, said: "We won't be

satisfied if they do nothing. We can't fight a war without the private sector-90

percent of our power and most of our transportation is privately owned. The

private sector has a responsibility to protect itself. We will be pestering and

hectoring if you do nothing.""

• Some confusion remains about who in the Federal Government will be

responsible for maintaining data. When the Government initially proposed a

Federal Intrusion Network (Fidnet) to be established within NIPC under the

oversight of the FBI, Congress refused to allocate startup funds for the

network." The Administration then reported that the General Services

Administration (GSA), not mentioned previously, would also have a role to

play. Data from nongovernment networks would be collected by GSA (the

Government's purchasing agent and landlord) and maintained in a separate

location to keep the data "at arm's length from law enforcement.""' A second major issue involving cybersecurity is the perception that privacy has

taken a back seat to law enforcement. In Aprill999, the first chief counselor on

privacy was appointed, 3 years after the promulgation of Executive Order No.

13010." Invasion of privacy, encryption countermeasures, and monitoring are

matters of concern to many people. Civil libertarians reportedly view cybersecurity

measures as a potential threat to privacy and other civil liberties; House Majority

Leader Dick Armey denounced the Fidnet system as Orwellian." More than 250

Members of Congress are on record as wanting to prohibit the Government from

mandating "back doors" into computer systems, a position that would effectively

prohibit law enforcement investigators from overriding encryption systems in major

cases involving large-scale computer fraud or cyberterrorism.86

In the face of these difficulties, the Commission believes misperceptions about

cybersecurity policy must be clarified in a manner that both protects civil liberties

and permits effective law enforcement. The Commission supports encryption as a

82 means of ensuring citizen privacy, as long as it is implemented in a manner that permits law enforcement officials, under court supervision, to pursue legitimate investigations.

PERSPECTIVE ON THE RESPONSE TO GLOBAL CRIME

The Commission believes that Federal law enforcement is at a very early stage in the

development of its responses to global crime. The Commission sees both the global

ization of crime and the internationalization of Federal law enforcement on a level

that is without historic precedent. International crime (in its various manifestations)

has been declared a national security threat, which is in marked contrast to the period

from 1948 to 1990 when threats to national security were mutually assured destruc-

tion and ideological in nature.

Since 1995, five major Presidential Decision Directives (PDD) have been issued:

• PPD 14 (1995), which authorized and emphasized drug enforcement pro-

gram operation in source countries;

• PDD 39 (1995), which called for the development of terrorism response

procedures; • PDD 42 (1995), which focused on the need for coordinated responses to

international crime;

• PDD 62 (1998), which called for a systematic approach to the threat of

unconventional attacks and the fight against terrorism; and

• PDD 63 (1998), which focused on the need to protect the physical- and cyber-

infrastructure of the United States.

These directives have led to the formulation of new plans, strategies, and coordination efforts, some of which have already been noted in this report. International crime has presented additional demands on the Federal law enforcement structure and its relationship with other entities. In 1995, for instance, the State Depmtment's Bureau fat InfematiOiial Narcotics aria Law EiiforcemeiiiAffarrs(fNi..j ad;pted a dual function as a policy and as an assistance agency on drug control and funding of international programs. As more Federal agencies become internationally oriented, the State Department has an expanded role in coordinating law enforcement activities and ensuring policy coherence. Federal law enforcement cannot undertalce a unilateral 83 fight against international crime. Il is essential that tl1e United States assume its proper leadership role, inviting otl1er interested nations to join and support tl1e effort.

Moreover, response planning to terrorism is no longer just a matter of investigating an incident. Federal law enforcement is part of a larger team involving the State

Department, the Federal Emergency Management Administration (FEMA), tl1e

Depmtment of Defense, and State and local governments. New configurations for !=! 2 Federal law enforcement's use of sanitized intelligence information have been developed in an attempt to maximize information flow between law enforcement and tl1e intelligence community. FBI plans for a super Information Sharing Initiative (lSI) have been developed but are encountering obstacles in the Congress.

As observed by the Commission, directives and strategies are not synonymous with full-scale implementation. Despite a major global crime pronouncement by the

President at the United Nations in 1995, issuance of PDD 42, white papers, and a

White House International Crime Control Strategy (1998), the International Crime

Control Act of 1996 was presented to Congress again in 1998 where it remains in Committee. As noted above, initiatives on cybercrime and countermeasures have been

met with opposition by Congress, industry, and privacy groups. In perhaps one of the

longest fights, the "war on drugs," from the 1960s to the present, goes on. Billions of

dollars and a variety of implementation and coordinating strategies have produced

success stories in the fight against narcotics. Still, it is also accurate to say that narco

terrorism and trafficking have become institutionalized in foreign government struc-

tures, threaten their internal stability, and, as a result, pose an even greater national

security threat to other nations, including the United States.

Full-scale implementation of international crime-fighting strategies is also a

function of the budgetary process. Without the required funding, pronouncements,

directives, and planning and strategies remain aspirations, not law enforcement

programs. The costs are enormous. The Budget for Fiscal Year 2000 proposes some

$26 billion to control crime. More than 40 percent of the crime budget is directed to

emerging criminal threats:

84 • More than $8 billion for combating terrorism and weapons of mass destruc-

tion;

• Almost $2 billion for fighting international crime, and;

• More than $1 billion for critical infrastructure protection and cyber crime.87

The fight against international crime in the 21" century was "born" in the 1990s.

It is still in its infancy.

CONCLUSIONS

Based on its review, the Commission concludes that:

• Transnational crime presents extraordinary new challenges to law

enforcement at all levels. The problem of confronting transnational crime is

not a lack of laws at the Federal level, but rather the explosive growth in

global crime and the lack of focus on attacking global crime as a national

priority. Implementing the Administration's International Crime Control

Stategy policy commitment to improve coordination among Federal, State,

and local agencies to deal with global crime is urgently needed. • Narcotics trafficking is a breeding ground for international crime and

terror and has the potential to destabilize U.S. allies and destroy Ameri-

can communities. Despite a record number of seizures and a flood of

legislation, the Commission is not aware of any evidence that the flow of

narcotics into the United States has been reduced. The Nation needs a well-

funded, comprehensive approach to drug trafficking that coordinates effec

tively the efforts of Federal, State, and local law enforcement agencies. The

fight against drugs must be as sophisticated as the cartels that control narcot-

ics and should incorporate both demand (domestic) and supply (international)

policies and actions.

• }i'ederaLiawenforcementisinadequatelyprepared todealwitlftfieserie\v·

challenges. In many cases, Federal law enforcement agencies are waging a

war against the criminality of the 1980s, not the year 2000. In too many

cases, Federal law enforcement agencies lack the research and knowledge

they need to proceed and are hampered in their efforts by out-of-date infor- 85 mation systems and technologies.

• The Government is struggling with how to respond to the challenges of

cybersecurity and cyberprivacy. Confusion about Government policy with

regard to cybersecurity is widespread and evolving policy is ambiguous. At

the same time, the Government has found it difficult to decide how to pre-

serve privacy while providing the tools to combat cybercrime.

These are important issues that the Commission addresses in its recommendations in Chapter Seven. CHAPTER. FIVE. FEDERAliZATION OF CRIME

Ci''ii:Jh,>rP has been a startling growth in the number of Federal crimes over the years.

It is estimated that fewer than a dozen crimes were considered to be Federal offenses as the embryonic Republic was launched; today, more than 3,000 Federal offenses are thought to be on the books." Perhaps what is most surprising is that more than 40 percent of crimes specified as''Federal'' sincethe(:ivil\V'ar\\'ere designated as such in the past quarter century.

In reviewing the history of the federalization of crime in America, it is quite apparent that a growing Federal presence in law enforcement accompanied practically every significant era of social change in the Urrited States. The constitutional chal 87 lenges posed by the attempted secession of the South from the Union as one cause of the Civil War led Congress to expand the duties of the Attorney General. U.S.

Marshals helped not only to police the West after the Civil War, but also to enforce the constitutional amendments outlawing slavery and granting voting rights to eman- cipated slaves." Imrrrigration challenges of the late 19th century called for expanded authority for customs and immigration officials. Isolationism accompanying the U.S. experience in World War I and reactions to the Bolshevik Revolution in Russia led to the "Red Scare." A sirrrilar pattern of anxiety about the Soviet Union, accompanied by worry about tl1e loyalty of Federal employees, led to a crackdown on spying after

World War II. The growth of crime and illegality in tl1e Prohibition era that followed enactment of the Volstead Act created an entire panoply of new Federal offenses-a phenomenon repeated in almost identical steps in tl1e 1970s, 1980s, and 1990s as public concern about violent crime against individuals, and alarm about narcotics and the distribution systems established to supply them, have grown.

Tracking the growth in Federal enactments decade by decade demonstrates dramatically the appetite of lawmakers in the 20th century to federalize common Figure 5. Percentage of Federal Statutory Sections Enacted, by Decade

a: ~ >

0 3 6 9 12 15

88 PERCENTAGE OF STATUTORY SECTIONS ENACTED

Source: Task Force on the Federalization of Criminal Law (1998), The Federalization of Criminal Law: Defending Liberty, Pursuing Justice, Washington, D.C.: American Bar Association, p. 9.

crime. As Figure 5 shows, fewer than 5 percent of the statutory sections on the books

as of 1996 had been enacted prior to 1900. But in this century, two great surges of

lawmaking, from 1930 to 1959 and from 1970 to 1996, have expanded the United

States Code (and the agencies required to enforce it) to the breaking point. There are

even "statutes behind the statutes" in the sense that large numbers of sanctions are

dispersed in places outside the criminal code. According to the American Bar

Association study, many nonstatutory sanctions are located in rules of court and

thousands of administrative regulations promulgated, with congressional approval, by

various Government agencies. The result, says the ABA: "So large is the present

body of Federal criminal law that there is no conveniently accessible, complete list of

Federal crimes."90

A former Attorney General of the United States, Richard Thornburgh, told the

Committee on the Judiciary of the House of Representatives in 1995 that, "[T]he traditional scope of jurisdiction has recently been expended to create Federal crimes involving, for example, crujack:ing, deadbeat dads, and certain types of domestic violence ... .Thus, the mission of Federal Jaw enforcement officials is increasingly intertwined with that of their State and local counterparts.""

In a presentation made to the Commission during the course of its hearings,

Hubert Williams-former chief of police in Newark and now president of the non- profit research and technical assistance agency, The Police Foundation, confirmed

Attorney General Thornburgh's complaint. Chief Williams noted that there is hardly a crime, no matter how local in nature, tlmt is beyond the reach of Federal criminal jurisdiction. Chief Williams said: 92

Federal crimes now range from serious, but purely local, crime-like

carjacking and drug dealing-to trivial crimes, like disrupting a rodeo93 The

1994 crime bill alone created two dozen new Federal crimes, federalizing

such crimes as drive-by shootings, possession of handguns near a school,

possession of a hand gun by a juvenile, embezzlement from an insurance 89

company, theft of a major art work, and murder of a State official assisting

Federal law enforcement agencies. Although many of these crimes pose a

real threat to public safety, they are already outlawed by the States and need

not be duplicated in the Federal Criminal Code.

In sum, many crimes formerly considered to be the exclusive domain of State and local officials and their courts, investigators, and prosecutors-common crime, and aspects of arson, burglary, robbery, fraud, and crimes against individuals such as murder, rape, and even domestic violence-have now been superseded by Federal statutes, which of necessity have to be enforced by agencies of the Federal Government and its courts, investigators, and prosecutors.

The Commission wants to point out that the ramifications of this issue extend far beyond management, administration, agency preferences, and the like. They go to the heart of the administration of justice in the United States and the public's confidence in our judicial system. As the recent ABA report noted, the federalization of crime challenges the Nation's basic constitutional framework. It also adds huge practical burdens to Federal courts and Federal law enforcement agencies, burdens that distract

Federal law enforcement from very serious national and transnational criminal

activiry and may even bring criminal justice enforcement into disrepute.

The innate distrust of Americans of the idea that broad police powers should be

entrusted to a national police force (as distinguished from local and specialized police

agencies) argues against continued federalization of criminal activity, because each

expansion of jurisdiction bestows new powers on Federal agencies. Although there

are clearly appropriate areas of Federal jurisdiction, ad hoc Federal "incrementalism"

is no way to make policy in this area, where both historic precedent and present-day

common sense hold that police authority should lie primarily with State and local

authorities, not the Federal Government.

Moreover, the Supreme Court has recently reminded Congress that the Constitu

tion withheld from Congress "plenary police power that would authorize enactment

of every type of legislation" (United States v. Lopez, 1995) and that both States and

90 the Federal Government have distinct political capacities, each entitled to be "pro-

tected from incursion by the other" (Printz v. United States, 1997).

Wasted Effort

What is perhaps most surprising about all of this is that these efforts to "make a

Federal case" out of common crime are largely wasted. The ABA analysis makes it

clear that defining crimes as Federal has had little effect on violent crime because, in

practice, Federal law enforcement efforts reach only a small percentage of such

activities.

The key point to bear in mind here is that of all the prosecutions in the United

States, the Federal Government is responsible for only 5 percent of them. State and

local prosecutors bring 95 percent of all cases in the United States. Against tlmt

backdrop, asking Federal law enforcement agencies and prosecutors to assume larger

and larger areas of responsibility flies in the face of the reality of which levels of

Government are most involved in prosecuting common crime, violent or not. The

ABA analysis also indicates t11at even the most frequently prosecuted Federal offense (domestic drug trafficking), which accounted for 28 percent of all Federal filings in fiscal 1997, represented Jess than 2 percent of all prosecutions in the Nation. Drug caseloads account for one-third of the Federal case!oad, yet of the million-plus drug arrests in the Nation, only about 1.5 percent are federally prosecuted.

Limited resources of investigative personnel, Federal prosecutors, and even courtrooms circumscribe how far a "federalization" strategy can go. Federal criminal

Jaw and resources can reach only a small number of local crimes at any given time.

National lawmalcers must ask themselves what they want to accomplish. Do they

prefer to arrest and prosecute petty criminals selling drugs on the street? Or do they want to put large-scale drug distribution rings out of business? Do they want to arrest and prosecute every minor who comes into possession of a handgun? Or do they want rigorous enforcement of existing laws to ensure incarceration of criminals of all stripes (including minors) who use, carry, or discharge a firearm in the commission of a crime?

Both Congress and the President must come to tenus with how to malce policy 91 that governs what crimes are designated as Federal. They must do so in the face of what this Commission considers to be a predisposition to enacting a statute for almost every conceivable criminal activity that disturbs the peace of an important constituency.

Practical Burdens

The day-to-day practical effects of the expansion of Federal jurisdiction also deserve attention. Simply in terms of applicable statutes, there has been a 40 percent increase in criminal activity requiring the attention of law enforcement officers, prosecutors, and courts since 1970. Accompanying this expansion, there may well have been a diminution in State and local authority.

At the same time, the potential strain on the Nation's fabric occasioned by ever- increasing concentration of Jaw enforcement power in national hands is compounded by the disturbing reality that Federal law enforcement's ability to respond to genuine national problems such as terrorism, transnational crime, and cybercrime may be compromised. There are only so many hours in the day and, despite impressively large budgets, Federal agencies can only do so much. Expanding areas of appropriate

domestic Federal jurisdiction inevitably compromises the pursuit of other important

agency purposes.

The Commission also believes that federalization of crime offers at least a

possibility of bringing the criminal justice system into disrepute. Just as members of

President Hoover's Wickersham Commission worried that the unenforceability of the

Volstead Act during Prohibition in the 1920s led to declining confidence in law

enforcement," we might easily find that unenforced, or selectively enforced, Federal

statutes in the year 2000 and beyond have the same effect.

Equally troubling is the possibility that federalization threatens the concept of

"double jeopardy" in a very real, but not unconstitutional, manner. According to the

ABA, Federal courts have consistently held that if the same conduct "offends two

separate sovereigns-the individual State and the Federal Government" they are not

the "same offense" for constitutional purposes and, hence, two trials do not constitute

92 double jeopardy." Despite the subtlety and importance of that distinction, it is likely

that its widespread application could strike many Americans as unfair.

In addition, because prosecutors must inevitably select among the cases they will

bring to trial, the existence of dual-track systems of justice means that citizens

prosecuted in Federal court are subject to a set of sentences and consequences much

different from those they face in State and local courts. In particular, the sentences

for time to be served for Federal sentences in areas such as drug trafficking, drug

possession, auto theft, burglary, aggravated assault, and robbery are all appreciably

more severe than corresponding sentences in State courts." It is noteworthy that in

each of these areas, the Commission's survey indicates that the public believes State

and local courts are better qualified to judge these matters than are Federal courts.

The Commission finds the ABA's conclusions with regard to dual-track justice

compelling. Noting that the power to prosecute and punish citizens is among the

most awesome of Government's powers, the ABA report concluded:"

A dual system that affords the opportunity to prosecute essentially the same

conduct as a Federal crime rather than a State crime, with starldy differing consequences, should be as rational and principled as possible, and cogent

reasons should justify Federal criminalization.

Although many Federal enactments rise to that standard, too many are justified

more by emotion, political calculation, and the desire to do something and claim

authority than tl1ey are by careful examination of the issues at stalce and the best way

of resolving them.

In the Commission's judgment, this long-term phenomenon has accelerated too

rapidly in recent years. It seems apparent that the situation has come to the point that

federalization of crime threatens to overwhelm Federal law enforcement capacities just as dramatic and serious new law enforcement challenges grow in intensity.

The Executive Branch and Congress continue to redefine what constitutes a

Federal crime, and how law enforcement agencies are to pursue their missions.

Clearly, Federal agencies do not possess the authority to define the appropriate scope

of their jurisdiction or choose the methods by which they will pursue their missions, 93 but they remain important in the policy determination process.

The fact is that Congress, the President, and, to a lesser extent, Cabinet officials

establish agency missions (and often procedures) by developing and enacting statutes

and promulgating regulations that require Federal enforcement. No one argues with

that proposition when it involves matters of an interstate or transnational character.

But the Commerce Clause of the Constitution and concern for civil rights can be used

to justify Federal jurisdiction over practically any crime in a modem society. So the

record is replete with examples of new expansions of Federal jurisdiction to incorpo-

rate drive-by shootings, possession of handguns near schools, possession of handguns

by juveniles, murder of State officials assisting Federal law enforcement agencies,

domestic violence and attacks on abortion clinics, and hate crimes of all sorts.

Each of these is a serious matter. Most of them pose real threats to public safety

or the safety of individuals. Some of them are heinous. But most of these crimes

have been federalized with very little rational consideration of the fact that they are

already outlawed in State codes and may not need to be duplicated in the Federal

Criminal Code. Of immediate concern, with regard to the enforcement of Federal laws, all of them have been enacted with no consideration of any kind to their effect

on the efficient administration of justice.

Urgently needed, in the Commission's estimation, are procedures requiring

presidential and congressional consideration of the impact on the law enforcement

system of existing statutes and the likely results of creating new categories of Federal

crime. The consequences of congressional micromanagement of agency functions

also requires attention.

CONCLUSIONS

Based on its review, the Commission concludes that:

• Congress and the President are in danger of federalizing common

crimes. The enumeration of Federal crimes has grown from about a dozen in

the 18th century to more than 3,000 today. Forty percent of Federal crimes

have been put on the books since 1970. These crimes now range from the 94 heinous (treason and terrorism) to offenses clearly of interest to State juris

dictions." Steps to encourage greater consideration of the impact of federal-

izing crime are urgently needed. m • Federalization of crime threatens effective law enforcement. The feder- 2 'l1 0 ;o alization of crime challenges the Nation's constitutional framework, creates !0 m :g enormous practical burdens for Federal courts and Federal law enforcement m 2 9 agencies, distracts Federal law enforcement agencies from more serious

criminal activity involving national interests, and may even bring the system

of criminal justice into disrepute.

• The Federal Criminal Code (Title 18) has become too complex. Nearly

200 years of additions and revisions to the Federal Criminal Code have

created an unwieldy and complex body of law. The Congress needs to

identify overlap and duplication in the United States Criminal Code, weed

out inconsistencies, and prune away unnecessary accretions.

These concerns are addressed in Ute Commission's recommendations in Chapter

Seven. CHAPTER SIX. PROFESSIONALISM, INTEGRITY, AND ACCOUNTABILITY

mn the Commission's view, one of the most significant statements it received during LJ its hearings was offered by FBI Director Freeh. Director Freeh pointed out that, in the changing world of law enforcement, national and local:"

[I]t's very important that we maintain what we call our FBI core values-that

we are careful in a changing world, in a changing field of responsibilities,

that we maintain the core values of the FBI with respect to integrity and

honesty, trustworthiness and fairness, and responsible use of our powers,

which are quite significant. 95 As the Commission's survey indicated, the general public is alert to any indica tions of misconduct, corruption, or abuse of power on the part of law enforcement personnel or public officials. The entire span of issues contained in the phrase,

"integrity and professionalism," is a serious law enforcement matter because so much of the public's confidence rests on that span.

As the world and the world of law enforcement face a cauldron of change, issues of law enforcement professionalism and integrity are more important than ever.

Different agencies have different histories, origins, and cultures. Some, such as the

FBI, are national, focused exclusively on law enforcement, and are known for breaking new ground in the profession and science of law enforcement. Others, such as

ATF, starting out regional, are responsible for both regulatory and law enforcement functions. >

In ATF and many smaller law enforcement agencies, law enforcement must compete with, and is sometimes secondary to, regulatory functions and even routine patrol and security work. "Enforcement" in the Department of Justice flows from the singular mission of the Attorney General. Small, fragmented, regulatory responsibili-

ties in the Department of Justice bear little influence on the Department's major law

enforcement function. In other agencies, by contrast, "enforcement" work, however

essential it is, is frequently collateral to the pursuit of other agency missions and

goals.

The Commission came to regard the policy dimensions of enhancing profession-

alism and integrity in four parts: encouraging uniformity and compatibility in

standards and procedures; ensuring that selection, training, education, and other

human resource management issues are properly advanced and maintained; encourag-

ing independent accountability procedures for agency performance; and providing

access to the technologies required for professional performance in a new century.

The Commission senses that problems exist in all four areas, a conclusion that will

surprise none of the agencies that appeared before the Commission because they

provided similar assessments themselves. In addition, the Commission received

96 testimony to the effect that employees in different agencies are subject to different pay schedules and promotion policies, despite similar backgrounds, education,

experience, and duties.

COMPATIBLE STANDARDS AND PROCEDURES

In a number of areas, significant progress has recently been made in ensuring some

measure of uniformity and compatibility between standards and procedures from one

agency to the next. Nonetheless, much remains to be done.

The Commission believes that policy regarding use of force, generally, and use of

deadly force, specifically, must be so clear that law enforcement personnel in the

field can harbor no doubts of any kind about when, where, and under what circum-

stances they are justified in using force against members of the public, or the taking

of human life.

On October 17, 1995, the Department of Justice and Department of the Treasury

issued standardized policies governing the use of deadly force by all law enforcement

agencies in their respective departroents. The Commission applauds the Department of Justice's Office of Investigative Agency Policies (OIAP) for leading the develop-

ment of this policy, which now governs about 90 percent of all Federal agents. 100

In fact, the Commission's survey indicated that most agencies have policies in effect governing use of force and use of deadly force. 101 With respect to force, agencies usually adhere to requirements for the use of minimal force necessary to effect and maintain order, protect life, and ensure that anests can be made safely. In addition, all 14 respondents subscribed to a general sense that officers "may use deadly force only when necessary, that is, when the officer has reasonable belief that the subject of such force poses an imminent danger of death or serious physical injury to the officer or to another person." 101

A comparison of actual policies reveals differences, however, in details, content, guidance, and slight variation in the policies themselves. For example, Treasury

Order 105-12 (Policy on the Use afForce) discusses the differences and provides policy guidance on the nuances of "imminent," "instantaneous," and "immediate" danger to a Treasury law enforcement officer. Treasury's order contains seven pages 97 of policy and guidance. On the other hand, the Department of the Interior's Depart- mental Manual contains a much shorter policy statement consisting of three pages and does not contain any guidance about "immediate and instantaneous" danger to an officer. It is not self-evident that seven pages are necessarily any better then three; the Commission's point is that, in these two departments, common guidance on someU1ing as fundamental as the use of deadly force does not exist.

Differences also exist regarding the clarity with which different agencies describe the intended result of the application of deadly force. Policy at the Federal Law

Enforcement Training Center (FLETC), where Treasury and other law enforcement officers receive training, is open to interpretation. FLETC policy states: "Firing a weapon should be with the intent of rendering the person at whom the weapon is discharged incapable of continuing the activity prompting the agent or police officer to shoot." It is unclear whether that intended result contemplates disabling or killing a suspect. Treasury policy is more explicit. It states that "Deadly force is the use of any

force that is likely to cause death or serious physical injury." Treasury policy later

makes it clear that shooting to wound or disable is not recommended: "Attempts to

shoot to wound or to injure are unrealistic and, because of high miss rates and poor

stopping effectiveness, can prove dangerous for the officer and others. Therefore,

shooting merely to disable is strongly discouraged." FBI documents for the same

time period ( 1995-96) are similar to those of Treasury.

The firing of warning shots is normally prohibited because they pose a hazard to

innocent people. Warning shots are proscribed in the policies of the FLETC, Justice

(FBI), and the Department of the Interior. The use of warning shots is also forbidden

in the Department of the Treasury, except in Secret Service protective missions and

for Customs Service officials in open waters.

Popular culture and film images to the contrary, firing on moving vehicles (or at

the operators of moving vehicles) is normally discouraged, but language in different

98 agencies is open to interpretation. FLETC policy frowns on such actions, urging

"utmost caution ... when considering such action." Policy at the Departments of the

Interior and Justice (FBI) states that weapons may not be fired solely to disable a

moving vehicle. Treasury policy states that: "Treasury Jaw enforcement officers, in

exercising the U.S. Secret Service's protective responsibilities, may fire weapons

solely to disable moving vehicles .... " With regard to firing at vehicle operators,

although FLETC training policy discourages such actions, policy at the Departments

of the Interior, the Treasury, and Justice (FBI) states that weapons may be fired at the

driver (or other occupant) under certain circumstances.

These differences may be related to distinct agency histories in the development

of policy on the use of deadly force and variations between agencies in training

protocols. For example, the FLETC policy made available to the Commission dates

back to 1985 and draws on a 1973 policy document. In the Departments of the

Interior and the Treasury, officers are required to undergo Basic Criminal Investigator

training at FLETC prior to being authorized to carry or use a firearm. By contrast,

FBI agents are trained at the FBI Academy. Since at least 1966, the Academy has used a multistage approach to training with respect to deadly force: classroom instruction on policy and policy interpretation; classroom instruction using written scenarios to show how the policy applies to various situations; practical field exer- cises using paint or firing blank weapons; and mandated annual training,

The Commission's concern about policy on the use of deadly force is that standardizing policy across agencies does not mean uniformly written statements of policy, As a result, the policy documents are different and interpretations of them can also be different Furthermore, the Commission believes the quality of training can vary depending on where the training talces place and whether continuing training specifically mandates revisiting the question of use of deadly force, rather than simply requalifying to use a firearm

The danger of Jack of clarity in policy in this whole area is perhaps best illus- trated by FBI Director Freeh's testimony in 1995 regarding Ruby Ridge. Mr. Freeh stated that the "rules of engagement... were reasonably subject to interpretation that would permit a violation of FBI policy and the Constitution." Director Freeh went on 99 to say that "SWAT personnel on-scene interpreted the rules as a 'shoot-on-sight' policy-which they !mew was inconsistent with the FBI's deadly force policy." He declared that, "Never again will rules of engagement be open to an interpretation

[that] expands the deadly force policy [of the Department of Justice]." 103

This Commission understands the difficulty of developing coherent and standard ized policy that is applicable to highly fluid and volatile situations. In these situa tions, policy and training cannot totally substitute for human judgment. Nonetheless, in a grave area such as the use of deadly force, policy and training should be as precise and uniform as possible for all Federal law enforcement officers.

The Commission's views about policies on the use of deadly force are:

I. A policy that governs 90 percent of Jaw enforcement is commendable. A );;) policy that covers I 00 percent should be mandatory.

2. Examples of standard manuals and guidelines exist in the Federal Govern-

ment. One can go to the Internet and see that the GSA maintains one stan

dard set of travel regulations. The OPM has one set of generic job descrip- tions for all types of Federal employees. For example, outside of Federal law

enforcement in the sports world, the NFL rules are the same regardless of the

field on which an NFL-sanctioned game is played. Nevertheless, one cannot

go to the Internet or to a bookstore and find one standard book or manual on

the use of deadly force that governs all Federal law enforcement agencies.

3. Any degree of difference among deadly force training curricula, in the

competency of instructors, or in didactic methods is not acceptable on such a

serious topic that affects the safety of officers and the application of deadly

force policy.

On a number of other issues, it is clear that neither OIAP nor any other agency of

Government has been able to develop, promulgate, and enforce uniform and compat

ible policies. On a remarkably wide variety of topics-how informants are treated

and handled, the use of vests and other protective equipment, appropriate procedures

for interrogation, training and internal professional development, preservation of

100 crime scenes and evidence, forensics procedures, and standardized training protocols and follow-up on training-agency policy and procedures may vary dramatically.

One experienced local police officer complained to the Commission that procedures

for sharing information with local police agencies differs from agency to agency, in

large part because, "each Federal agency classifies data differently... This could be

easily remedied and updated by creating a multiagency examination of the ldnds of

data that must be restricted, and those that can easily be shared.""M

Each of these topics represents, in the Commission's judgment, an area ripe for

advancing professionalism and integrity in Federal law enforcement.

HUMAN RESOURCES

Equally troubling to the Commission is what seem to be haphazard training and

human resources policies within many Federal law enforcement agencies. This

situation surprised the Commission because the Federal Government generally has a

good reputation, well-earned, for the uniformity of its procedures and the amount and

quality of training it provides to public employees. In Federal law enforcement, that reputation may be equally valid in terms of general personnel issues and routine procedures, but it cannot be applied to the processes of law enforcement.

On the most basic issue imaginable-the existence of manuals and similar literature describing agency procedures-very diverse answers were received from the 14 law enforcement agencies surveyed by the Commission. The survey asked respondents to "provide a copy of your agency's enforcement manuals or similar literature and data on Special Operations groups, if applicable."

In response, the Commission learned that such manuals apparently do not exist in three agencies (the United States Forest Service, the Bureau of Indian Affairs, and the

U.S. Secret Service). Two agencies reported that the manuals were available on request-but did not provide them in response to a clear request (National Parks

Service and National Park Rangers); and one agency offered a confusing reply, reporting that the infonnation was classified, but apparently available on request

(United States Park Police). 101 In addition, the Federal Bureau of Prisons reported that its Correctional Sen•ices

Manual is a "restricted" document and may not be reproduced; and t!Je Bureau of

Alcohol, Tobacco, and Firearms "redacted" sensitive infonnation from some of the

Orders and Briefs it provided the Commission and promised to provide a "redacted" version of the handbooks it was in the process of developing, as soon as they were finalized.

The Commission is disturbed by the fact that so many agencies had trouble with this straightforward request. For most agencies, manuals either did not exist or they were classified. The Commission believes that such manuals are essential to carrying out agency philosophy, mission, and programs. They should exist; in most cases, they should be clear and detailed guides to training and procedure; and, with other specific exceptions, based on adverse effects on an agency's enforcement activities, they should, in a democratic society, be available to the public.

Each of the 14law enforcement agencies in the Commission's survey noted the importance of training in maintaining and improving the professionalism of Federal law enforcement. Most argued that expanding and improving training were the most important components in improving professionalism, pointing to the need for addi-

tiona! resources, better managerial and leadership training, and improvements in

procedures for recruiting, hiring, retaining, and promoting personnel. One agency

(Immigration and Naturalization Service) has instituted a "competency-based"

promotion system. Another, the Customs Service, has instituted a "360-degree"

personnel assessment system (a technique borrowed from the private sector where

everyone around the employee, including supervisors, subordinates, and colleagues,

contributes to the assessment).

And yet, although the importance of training is universally aclmowledged, the

concept is universally violated the minute budgets are reduced. The temptation to

support current services and operations at the expense of long-term investment in the

human resources of law enforcement is for all intents and purposes irresistible.

INDEPENDENT ACCOUNTABILITY

102 The Commission notes that external accountability for Federal law enforcement

agencies is, for the most part, notable by its absence.

Among the most sensitive issues in law enforcement at any level, in practically

every society, are the procedures, policies, and actions of specific departments and

officers. 105 The idea of independent scrutiny of law enforcement operations raises

agency anxieties. Officers are human beings; they are forced to deal with ugly,

frequently violent and brutalizing situations that most of the rest of society prefers to

avoid; no matter how professional or well-trained, they will make mistalces; and their

colleagues who work with them on a daily basis will be inclined to protect them from

the consequences of their mistakes-fearing that perhaps some day the favor may

need to be returned. Most Federal law enforcement agencies choose to investigate

allegations of personnel misconduct internally. Complaints are generally assigned to a

special unit (Internal Affairs, Office of Inspector General, or an Office of Profes

sional Responsibility), normally separate from line agency responsibilities.

Other procedures for encouraging agency accountability are possible and advo-

cates of these approaches discussed their merits with the Commission. One witness suggested four different models for the Commission's consideration, all developed and implemented at the local level, at least on a pilot basis in recent years: 1116 a civilian review agency to receive and look into complaints; an auditor to review the performance of internal affairs offices; community outreach in an attempt to explain law enforcement and the complaint process and to listen to community concerns; and quality assurance in the complaint investigation process itself. Other witnesses encouraged the development of community policing, 107 the establishment of pemm- nent, independent, oversight bodies, external to each agency, to prevent law enforcement abuse,'"' and efforts to ensure that each Office of Inspector General is insulated trom favoritism. 109

Several witnesses recommended to the Commission that it look favorably on accreditation through the Commission on Accreditation of Law Enforcement Agen- cies as a means of ensuring external accountability. 110 Accreditation is a process of self-study and peer-review around some 436 standards developed around agency missions and mandates. Some 500 law enforcement agencies in the United States 103 have been accredited since the program began in 1979. To the Commission's know!- edge, the only Federal agencies actively pursuing external validation of their procedures are the United States Marshals Service and the United States Capitol Police, which are seeking accreditation.

Professionalism and Technology

Testimony from witnesses before the Commission and other information received by the Commission presented a mixed picture in regard to the technological sophistica tion of Federal law enforcement agencies. Some have clearly kept pace with developments and maintain state-of-the-art inforn1ation technology and communications systems. Others lag seriously behind. In those agencies lagging behind, professional performance by employees can be seriously hampered by lack of access to the latest computers and communications equipment and technologies.

Recent advances in DNA technology are enabling law enforcement officers to solve cases previously thought to be unsolvable. To explore the extent to which this technology is being applied nationally, Attorney General Reno commissioned the

National Commission on the Future of DNA Evidence. The Commission has deter-

mined that for the full potential of DNA technology as a crime-fighting tool to be

realized, law enforcement officers must be educated and trained to properly identify,

document, collect, and preserve evidence that can be potentially subjected to forensic

DNA analysis. To maximize the significance of this evidence to the criminal justice

system, all law enforcement agencies, including those at the Federal level, should

modernize education and training curricula to reflect the recent technological ad-

vances in DNA technology.

Technology is essential to combating terrorism and cybercrimes, both domestic

and international. It is essential to the timely sharing of information at the opera-

tiona! level. The Federal law enforcement officer of the 21" century will require the

best and most up-do-date technology available.

CONCLUSION 104

Based on its review, the Commission concludes that:

• Federal law enforcement procedures, policies, and practices can be

standardized to a greater degree. It is imperative that the Government

develop standardized procedures and operations in areas such as: classifica-

tion and use of data; training; surveillance of citizens and issues of privacy;

forensic laboratory management; and rules of engagement and the use of

deadly force. Lack of standardization compromises effective law enforcement.

• Policy and practice with regard to the use of deadly force should be

standardized. All Federal law enforcement policies on the use of deadly

force should be stated in precisely the same words and interpreted in a

consistent manner unless the agency's mission clearly supports variation.

Each agency should provide the same content and guidance, with limited

variations for unique agency missions (e.g., warning shots over open waters).

• Personnel systems and scope of employment issues require careful

attention. The Commission received testimony to the effect that employees in different agencies are subject to different pay schedules and promotion

policies, despite similar backgrounds, education, experience, and duties. To

the extent this situation exists, it requires urgent attention because it is likely

to have significant implications for morale across agencies.

• Public confidence in Federal law enforcement can be enhanced by

appropriate external review. Preserving agency integrity and professional-

ism requires constant vigilance. The Commission judges that external review

is too often haphazard, frequently put in place after-the-fact, rather than

before. Program accountability and personnel integrity and professionalism

can only be strengthened by greater engagement with the larger public and a

clear commitment to review procedures that are fair and firm and consis-

tently applied.

• Training has not received the long-term commitment required. Although

it is generally accepted that law enforcement training should be a high

priority at the Federal level. there is no formal policy to ensure that adequate 105 budget and personnel resources are devoted to it. Effective strategies for

sharing experiences among agencies on training matters, or for establishing

minimum standards for ofncer training, have yet to be developed.

• Support for computers and the latest information technologies is incon-

sistent across Federal agencies. Although some Federal law enforcement

agencies can point to state-of-the-art technologies and equipment, others are

laboring with equipment and methodologies that were out-of-date a decade ago.

The Commission's recommendations in these and other areas follow. CHAPTER SEVEN. RECOMMENDATIONS

p::":.\ in\\. s the United States moves toward a new century, it faces law enforcement 1/L::~:~\ D~~,;~challenges unlike any it has faced in the recent past. We face global possibilities for terrorism and transnational crime that, for the first time, make it possible for individuals to wield the kind of destructive power once reserved for sovereign nations. The growth of Federal law enforcement agencies in the past 50 years, accom panied by the truly astonishing rate of increase in crimes deemed to be Federal offenses, is unprecedented in our Nation's history and strains a poorly coordinated system. Finally, the Commission's survey of public attitudes and the evidence it received during its exhaustive hearings demonstrate fairly conclusively that public 107 anxiety about professionalism and the need for integrity in Federal law enforcement must be respected, taken up, and addressed.

The picture is not entirely pessimistic. As the Federal law enforcement community in the Executive Branch and Congress moves forward on the agenda we have defined, its members will find many positive features on which to build. Elected officials and the American people enjoy an unusual opportunity to retool the Federal law enforcement enterprise, confident in the knowledge that no other superpower stands in the wings capable of serious long-terrn disruptions to the Nation's well- being.

Beyond that, as we noted at the outset, the generally positive public attitude toward the American system of justice and major Federal law enforcement agencies is an asset of considerable value. Citizens hold the major Federal agencies in high esteem. Moreover, the public appears to grasp reasonably well the strengths and wealrnesses of the large and complex Federal law enforcement machinery. The

American people have a powerful, common-sense understanding of what the Federal

Government is capable of doing and what is best left to State and local law enforcement officials. Perhaps most encouraging, the public understands the significance of

professionalism and integrity in Federal Jaw enforcement operations and is likely to

have the patience to support needed change. This Commission believes these public

attitudes will serve the Federal law enforcement community well as it moves into a

new century.

To deal with the challenges defined in this report, this Commission malces five

major recommendations:

• Mal(e it clear that the Attorney General has broad coordinating authority for

Federal law enforcement and for minimizing overlap and duplication;

• Provide the intelligence and information needed to combat terrorism;

• Malee global crime a national law enforcement priority;

• Reverse the trend toward federalization; and

• Focus on professionalism, integrity, and accountability.

108 I. Make it clear that the Attorney General has broad coordinating authority for Federal law enforcement and for minimizing over lap and duplication.

WE RECOMMEND that the President and Congress improve the administration of Federal law enforcement and its effectiveness by making it clear that the Attorney General has broad authority for oversight and coordination and by minimizing overlap and duplication of agency functions.

Implementing Recommendations

A. Strengthen Executive Order No. 11396, updating it through presidential or

congressional action if necessary, to reflect new global and national realities.

Executive Order No. 11396 should be reissued to ensure that the Attorney

General becomes the focal point of Federal law enforcement. The revised Executive Order should incorporate broad coordinating

authority for the Attorney General that the Director of Central Intelligence

possesses with regard to intelligence matters under Executive Order No.

I 2333. The revised Executive Order No. 11396 should provide the Attorney

General with explicit authority to:

• Act as the primary advisor to the President on law enforcement matters;

Develop and implement objectives and guidance for the law enforcement

community;

• Promote and ensure the development and maintenance of services of

common concern to Federal law enforcement agencies;

• Formulate and implement policies and procedures regarding law enforce-

ment;

• Ensure that the law enforcement community establishes common security

and access standards for managing and handling data and intelligence; 109 • Ensure that programs are developed to protect information, sources,

informants, methods, and analytical procedures;

• Establish appropriate staffs, committees, and other advisory groups to

assist in the execution of the responsibilities of the Attorney General;

• Monitor agency performance and, as necessary, conduct program and

performance audits;

• Provide for policies to ensure uniform procedures for responding to

citizens' allegations of misconduct on the part of Federal law enforce-

ment agencies or officers;

• Reduce unnecessary overlap or duplication among agency programs and

missions; and

• Submit an annual report to Congress about accountability, citizens'

complaints, and their resolution.

B. Transfer responsibility, authority, and personnel associated with enforcement

of firearms and explosives laws to the FBI, within the Department of Justice, leaving tax collection, licensing, and civil regulation within the Department

of the Treasury.

C. Transfer the Drug Enforcement Administration's budget, statutory authority,

and personnel to the FBI, creating a new separate division.'"

D. Encourage the President and Congress to look toward a long-term solution

that would rationalize and realign Federal law enforcement and security

agencies in the Executive Branch into several broad functional areas:

o Criminal Activity and National Security, would be the principal focus

of a strengthened FBI, which would incorporate the DEA and the law

enforcement functions of the ATF, would possess significant overseas

investigative and liaison authority, and would manage divisions respon-

sible for terrorism, narcotics crime, and national security;

o Protective and Border Security responsible for protecting American

leaders, foreign dignitaries and diplomats, U.S. diplomats, Federal

110 buildings and airports, the security of the Nation's borders, and the

inflow of peoples and goods from elsewhere, this activity would include

the Coast Guard, Protective Patrol (Secret Service, Park Service, Park

Police, and the Federal Protective Service), Border Enforcement (INS

enforcement, Customs enforcement, and Border Patrol), and the Secret

Service (to protect American and diplomatic leaders);

o Financial and Regulatory Enforcement would be the responsibility of

the Treasury Department, which would oversee a Financial and Currency

Enforcement Division and a Regulated Materials Enforcement Division,

both drawn from IRS Enforcement, the financial and currency branches

of the Secret Service, and the U.S. Customs Service;

o Corrections Enforcement should continue to be the responsibility of the

Federal Bureau of Prisons, an agency within the Department of Justice

employing nearly one-third of all personnel authorized to carry firearms

in the Federal Goverrunent; and • Resource Enforcement would incorporate the functions of the Bureau of

Land Management and the Fish and Wildlife Service (now in the Depart

ment of the Interior) with existing law enforcement functions fi·om the

Department of Agriculture.

E. Encourage the President to establish a permanent Interagency Advisory

Board on Federal Law Enforcement. This 19-member advisory board, made

up of representatives of the 14 major law enforcement agencies exan1ined in

this repmt and five additional representatives from other Federal law enforce-

ment agencies, should be directed to provide the Attorney General with

advice in two areas. The advisory board should be:

• Asked to look into the needs of small agencies, paying attention to the

relationship between the Park Service and Park Rangers; duplication of

police functions on Capitol Hill; the need to bting under-strength agen-

cies up to strength; and the feasibility of providing joint support for

managerial and administrative services for small agencies, freeing up 111 resources for police work.

• Directed to examine the growth and role of the function of the Inspector

General (in the Department of Justice and throughout the Federal Gov-

emment) and to consider tl1e wisdom and feasibility of consolidating

these offices.

Commentary

Despite what appears to be the radical surgery contemplated in Recommendation I, with the exception of lnlplementing Recommendation I -D, all of the recommendations above have been put forward publicly and officially at one time or another by responsible Federal officials and law enforcement experts. The Corrunission is aware of the previous studies recommending merger and, based on testimony received, analysis, and the collective judgment of Commission members, concludes that this recommendation is responsive to the congressional mandate of the Commission. It is a sign of how difficult it is to bring change to large Federal agencies that they have been able to withstand repeated calls from experts over the years for the ldnds of

structural modifications proposed above.' 12

The Commission is at a loss to understand why Executive Order No. 11396 bas

been ignored virtually from the day it was issued. Had that Executive Order been

properly implemented, many of the coordination problems the Commission identified

might have been avoided. In urging that the President review, amend, and reissue it

the Executive Order, the Commission hopes to breathe new life into what appears to

be sound public policy.

As it considered how to move forward with Executive Order No. 11396, the

Commission debated the wisdom of reissuing an executive order or suggesting that

the Executive Order's concepts and directives be enacted into law. Both approaches

have merit. Putting the order into a statute puts the full force of law behind it, a

formidable advantage. On the other hand, once enacted, improving and perfecting

such a statute if changes were necessary would require additional legislative action.

112 Putting the authority of the President of the United States behind the policy as an

executive order is also a considerable advantage. This approach also has the addi

tional attraction that future changes, if necessary, can be effected more readily. The

Commission believes that strengthening and implementing Executive Order No. 11396

are best carried out by presidential directive; failing that, we conclude that a statutory

solution will be required.

With respect to ATF, the recommendation the Commission malces above has been

supported by virtually every formal review of ATF functions since gun control

provisions became a significant feature of the agency's mandate in 1968. In 1993,

Vice President Al Gore's National Performance Review, reciting the same concern

about "too many cooks spoil the broth," had the following to say about this recurrent

theme with ATF: " ... we will move toward combining the enforcement functions of

the Bureau of alcohol, Tobacco and Firearms (BATF) into the FBI and merge BATF's

regulatory and revenue functions into the IRS." "'

To put it as simply as possible: the collection of taxes and the regulation of the

alcohol, wine, beer, and tobacco industries do not contribute to effective enforcement of the Nation's firearn1s and explosives Jaws. ATF Jacks a clear mission and sense of purpose because of the clash of disparate jurisdictional responsibilities. On the one hand, ATF enforces the frreanns and explosives laws that are critical components of the Attorney General's public safety duties. On the other hand, ATF has responsibility for a traditional IRS function: the collection of taxes on luxury items, specifically, distilled spirits, beer, wine, and tobacco. This small agency has for more than 30 years attempted to reconcile the irreconcilable. The same organization houses functions that are at cross purposes, feeding internal competition for resources and detracting from a unified law enforcement policy. The task of enforcing firearms and explosives laws can best be carried out in the FBI.

In February 1968, in a message to Congress, President Lyndon Johnson wrote of his dissatisfaction that drug enforcement activities were split between the Depart- ment of the Treasury and the Department of Health, Education, and Welfare, based on the type of drug violation involved-marijuana or LSD. At that time, the President proposed consolidating drug enforcement within the Department of Justice.'" 113

By 1973, Executive Order No. 11727 established DEA, abolished the Office of

National Narcotics Intelligence and the Office for Drug Abuse Law Enforcement, and merged the duties of the abolished entities into the new drug enforcement agency. The

Controlled Substances Act of 1970 is one of the principal pieces of drug law enforce ment legislation for DEA because among other authorities, it gives the agency the right to apply its resources, extraterritorially, to certain criminal acts committed outside the United States. The creation of the Office of National Drug Control Policy

(ONDCP) in 1988, provided the foundation for annual national strategies to reduce drug abuse, trafficking, and their consequences.

ONDCP is a continuing effort to rationalize the use of a large number of organizations involved in the fight against drug trafficking. For example, more than 20

Federal or federally funded organizations at the Federal level have key roles in collecting drug intelligence information, including the Department of Justice, Depart- ment of the Treasury, Department of Transportation, Department of Defense, Depart ment of State, Executive Office of the President, and the Central Intelligence Agency. In a little more than 30 years, drug crimes and Federal drug enforcement grew

from a minor concern about marijuana and LSD to a multiagency, multibillion dollar

effort that affects national security interests. This expansion has not gone unnoticed,

and there have been continual efforts to try to mobilize law enforcement resources

and improve working relationships as they relate to drug enforcement.'" A focal

point of concern has been the concurrent jurisdiction of the FBI and DEA for en-

forcement of Federal criminal drug laws. 116

How to deal with Federal statutes that involve violations of several laws that fall

under the jurisdiction of several agencies was a subject of Vice President AI Gore's

1993 National Performance Review. That report stated: 117

... a drug case may involve violations of financial, firearms, immigration and

customs laws, as well as drug statutes. Unfortunately, too many cooks spoil

the broth. Agencies squabble over turf, fail to cooperate, or delay matters

while attempting to agree on common policies. 114 The first step in consolidating law enforcement efforts will be major

structural changes to integrate drug enforcement efforts of the DEA and FBI.

The Gore report also stated that such integration would enable the "Federal

Government [to] get a much more powerful weapon in its fight against crime."'" The

Commission agrees with Vice President Gore's statement about turf battles and the

failure to cooperate. It is precisely these types of situations that force observers to a

critical view of what is perhaps the largest, most sustained, and most visible, law

enforcement effort in recent decades. In this context, horror stories about infighting

and multiple jurisdictional overlap between two of the most publicized law enforce

ment agencies-DEA and FBI-require critical judgments. The turf battles reported

in the Mexico Raul Salinas investigation are just one example. 119 A New York Times

article ran the following title, "Tracing Money, Swiss Outdo U.S. on Mexico Drug

Corruption Case," on a story about Raul Salinas, brother of former President of

Mexico Carlos Salinas. Two notable quotes from tl1e article were as follows: " 0

... Washington's pursuit of Mr. Salinas has been troubled from the start, witl1

turf battles among law enforcement agencies and Federal prosecutors, disputes over the handling of witnesses and complaints from agents in the

field of meddling and a lack of interest by higher-ups.

Drug enforcement officials said the reports [linking Salinas to Mexican

cocaine smugglers] were startling, but not enough to merit a special inquiry.

That view quickly changed after the discovery of the Swiss accounts, but

after some bureaucratic struggle it was the F.B.I.'s office in New York, where

Mr. Salinas had banked, that was finally assigned the investigation.

The Commission is convinced that the time to clarify responsibility for enforcing drug laws has arrived. Both the DEA and the FBI consider themselves to have essentially the same drug enforcement mission. Each has arrived at that conclusion by a different route, the DEA looking at drugs from the nature of the offense, the FBI examining the same crime based on tl1e nature of the offender. Simply on the admin istrative merits of the argument, DEA should be lodged within tl1e FBI. Numerous high-level examinations of Federal law enforcement have recommended combining the two. The globalization of narcotics and the worldwide nature of the challenge 115 indicate that the time to bring the two agencies together has arrived.

The Commission also received what seemed to be quite credible suggestions for a long-term realignment of Federal law enforcement that would emphasize broad functional areas such as financial regulatory enforcement, criminal activity and national security, and protective and border security. Conceptually these suggestions are attractive; as a practical matter, implementing them inevitably presents managerial challenges of the gravest kind. The Commission believes that interagency task forces, presidential reorganization reviews, and congressional hearings should submit these suggestions to the most searching scrutiny. They are ideas for the long term, not for next month or next year, and long-tenn analysis of them will reveal whether they deserve to be supported.

Finally, the Commission wants to note that even an Attorney General strengthened in the full exercise of the powers contemplated in Executive Order No. 11396 will require advice and guidance on any number of matters. We believe the case for a permanent, independent, Interagency Advisory Board on Federal Law Enforcement is persuasive. Among its first duties should be an examination of how to improve

professionalism in small Jaw enforcement agencies and a review of the roles and

functions of the Office of Inspector General. The Commission is particularly con

cerned about the need to review the needs of small law enforcement agencies. In the

course of our inquiry, we received testimony that many of these agencies are under-

budget and under-strength, operating with limited resources, poor facilities, often

without replacement automobiles or radios, and little support for training.

In the Commission's view, the function of the Office of the Inspector General

should be to act as an Auditor General, not as a Jaw enforcement entity. The advisory

board should explore the degree to which the Inspector General's function duplicates

the work of other Federal law enforcement agencies, whether these offices should

exercise arrest functions, whether they should combine program oversight and law

enforcement responsibilities, and the adequacy of training provided IG personnel.

The Commission believes that to the extent Inspectors General are involved in Jaw

116 enforcement operations the cooperation of existing law enforcement officials from agencies such as Customs and the FBI to work with OIG officials is a better route

than creating separate Jaw enforcement entities within OIGs.

II. Provide the intelligence and information needed to combat terrorism.

WE RECOMMEND that the law enforcement and intelligence COIIWlllllities review their procedures and policies to ensure that the President, Congress, and the National Security Council that they have adequate resources to coordinate activities and to pursue the information that Federal, State, and local law enforcement agencies need to combat terrorism.

Implementing Recommendations

A. Provide adequate resources and assets for intelligence collection and analysis,

including efforts to: • Upgrade the technological sophistication of law enforcement;

• Develop expertise in the cultures and languages of other nations;

Strengthen cooperative relationships with other nations, including

extradition and mutual legal assistance treaties;

• Improve counterterrorism training for local agencies (the preferred "first

responders"); and

• Support long-term federally funded research on how to improve domestic

preparedness for terrorist threats.

B. Respond to the threat of cyberterrorism by implementing national security

policies to address the new realities of the Information Age. This response

should include:

• A policy review of coordination among existing law enforcement and

intelligence organizations with regard to information warfare, security

policy, information security, and cybercrime; 117 • Plans to ensure tl1at critical services such as national defense; emergency

services; defense readiness; law enforcement; air travel; and power,

water, and fuel distribution systems can be maintained securely against

threats from both hackers and terrorists; and

• Work with the private sector to ensure that commercial telecommunica-

tions and information systems are secure from external attacks.

C. Develop policies and procedures for collecting, disseminating, and sharing

data and intelligence through interconnected communications systems with

other Federal agencies and with State and local law enforcement officials.

D. Ensure that the legitimate needs of law enforcement agencies to override

encryption systems are balanced by judicial supervision to protect the privacy

and civil liberties of citizens.

Commentary

The end of the Cold War has dramatically changed the nature of the threats the United

States faces. In the place of the possibility of the use of devastating military power against the American people by another superpower, our society now faces smaller

threats, from multiple terrorist sources, that are in some ways more difficult to assess

and manage. They may even be more insidious, striking closer to home, threatening

lives and property in geographic areas of the United States that are hard to identify in

advance. As innumerable commentators pointed out after the Oklahoma City bomb-

ing, that event traumatized many Americans in part because it occurred in the Ameri-

can heartland, not in Washington, DC, New York City, or Los Angeles.

Although the Commission received no testimony from U.S. intelligence agencies,

it did review several major public reports on intelligence activities, as they relate both

to international crime and terrorism. It is clear that conflict exists between the law

enforcement and intelligence communities.'" The two share a mutual reluctance to

share potentially sensitive information. Intelligence agencies refuse to accept direct

collection tasking from law enforcement agencies unless the request has a valid

"foreign intelligence" purpose. And the expansion of the presence of law enforce

118 ment agencies overseas, principally the FBI, has created a third set of tensions. In fact, the Commission received testimony that as many as 2,000 Federal law enforce-

ment agents are operating overseas, frequently without effective coordination with

either intelligence agencies or the Department of State.'"

The result is that it is difficult to ensure that information about potential terrorist

activities is shared with law enforcement officials at the Federal, State, or local

levels-even when to do so presents little or no threat to national security or intelli-

gence-collection activities. The Commission believes it is time this situation was

changed.

In this respect, the Commission applauds the President and the FBI for recent

progress in this area. In January, the President announced new responses to threats to

the Nation's security, particularly the possibility that rogue states or terrorists might

attack the critical computer infrastructure of the United States. Providing for new

budget authority, this new effort also assigned major responsibilities for law enforce-

ment and related activities throughout the Government-law enforcement under the

Attorney General and the director of the FBI; diplomacy and defense issues under the Departments of State and Defense; better intelligence collection programs under the director of the CIA; and improved efforts to contain nuclear weapons proliferation under the Department of Energy.

The FBI has also recently announced a new ANSIR program (Awareness of

National Security Issues and Response). ANSIR represents the "public voice" of the

FBI for espionage, counterintelligence, counterterrorism, economic espionage, and cyber and physical infrastructure protection and all national security issues. It is designed to provide unclassified national security threat and waming infonnation to

Government agencies, law enforcement entities, and U.S. corporations. Using e-mail, fax networks, and each of the agency's 56 field offices, ANSIR promises to brealc new ground in alerting nongovernmental and non-Federal agencies of various kinds about potential national security and terrorist threats. The Commission would be even more impressed with the effort if it could be demonstrated that it clearly in- valves cooperation and support from other Government intelligence agencies.

The Commission wants to stress the importance of providing additional funds for 119 research and technology to deal with terrorist threats. To ta](e but one example: encryption of information by criminals presents serious threats to public safety.

Encryption may be used by terrorists (or by drug lords) to communicate their plans in secret, or to maintain records in a form that frustrates search warrants and wiretap orders. The Government and the private sector together must proceed with energetic efforts to protect the legitimate needs of citizens and businesses for electronic communication and electronic commerce, although preserving Government's legitimate need to gain access to data and information as part of legally authorized search procedures.

In similar fashion, electronic commerce, "smart" cards, and Internet trading are fast becoming established as standard practice for financial and telecommunications services. Shifting from paper money to its electronic equivalents presents serious new international challenges for law enforcement at all levels. Additional research focusing on the vulnerability of these emerging technologies to terrorism and interna- tiona! crime needs to be undertaken. Finally, the Commission notes that the Information Age brings with it new threats

to national security and to a wide variety of critical public and private services. As

recent analyses from the Center for Strategic and International Studies (CSIS) point

out, the real possibility for an "electronic Waterloo" exists if public officials do not

pay sufficient attention to threats to the Nation's information security."' The Com

mission endorses the CSIS report and calls for the development of national security

policies that respond effectively to the emerging threat of cyberterrorism and

cybercrime. At the same time, the Commission is aware of recent criticisms that

policies governing cybersecurity at times appear to be pursued without explicit

consideration of potential threats to privacy and civil liberties. Law enforcement

officials must understand that the techniques, procedures, and technologies at issue

here are so powerful that Federal agencies must be alert to public anxieties about the

potential for abuse, no matter how remote that potential may be.

III. Make global crime a national law enforcement priority. 120

WE RECOMMEND that the President and Congress expand the attack on

global crime, narcotics trafficking, and cybercrime with new determination and

energy.

Implementing Recommendations

A. Implement the Administration's May 1998 International Crime Control

Strategy with respect to global crime, a policy that understands international

crime as a potential threat to national security, defines an integrated

countemarcotics program as part of Federal policy, and contemplates an

International Crime Center under the direction of the Federal Bureau of

Investigation, in cooperation with the Departments of State and Justice and

the CIA.

B. Develop an integrated countemarcotics policy that can be incorporated

within the Nation's strategic planning and reinforce the Federal

Government's efforts against international crime. The effort should be multi tiered, incorporating programs and policies to dissuade domestic con-

sumption and interdict foreign supplies as well as efforts to encourage the

coordination, consolidation, and networking of intelligence systems.

C. Cooperate with other nations in developing multilateral approaches to attack-

ing transnational organized crime.

D. Insist that the Department of Justice, the Department of State, the CIA, and

other Jaw enforcement and intelligence agencies coordinate their capabilities

and activities across agencies so that each draws on the expertise of the other

in the most effective way.

E. Expand research on, and upgrade technologies to combat, transnational

crime.

Commentary

Many of the Commission's comments with respect to developing effective responses 121 to terrorism apply with equal force to issues of global crime and narcotics trafficking, but the Commission also makes several additional observations. Global crime is likely to_pose~ increasing danger to the American people as international criminals become more sophisticated and adept at employing new technologies to advance their aims. This becomes a particularly troublesome issue because it is not simply a Jaw enforcement issue but also involves issues of diplomacy, defense, and national security. All of them are intertwined and the criminal aspects of global and transnational crime will not yield to a Jaw enforcement solution alone.

In this regard, the Commission is troubled by indications of problems coordinating the Jaw enforcement dimensions of these issues with agencies responsible for the

Nation's intelligence, diplomatic, and defense activities. Thus, this Commission supports recent calls for high-level, presidential statements reaffmning that global CJ criminal activities, including terrorism, drug trafficking, organized crime, and the proliferation of weapons of mass destruction are national security matters requiring coordinated, multiagency responses. The Federal law enforcement community by itself cannot respond effectively to these challenges. It is also quite clear that law enforcement and intelligence agencies must recog-

nize that the United States alone is not the only nation capable of taking on the

challenges of organized transnational crime. As a recent international seminar on

international crime and terrorism stressed, the need for international cooperation is

paramount. 124 The days when individual nations could successfully fight crime,

drugs, and terrorism on their own are over. Unilateral actions to address these

challenges are insufficient; joint action across national borders becomes increasingly

essential.

Because of the preeminence of American law enforcement and intelligence

agencies, it is probably desirable for the United States to assume the leadership role

in many transnational efforts; but it should also invite other interested nations to

contribute to these efforts in a serious manner. Interpol (although not an investigative

agency per se) may be one promising approach to encourage international ap

proaches; the Commission also judges that the issue of transnational crime is so

122 sensitive that it probably requires intensive discussions at the highest levels of Government in developing plans for proceeding.

The Commission was distressed to learn that the evident challenges to law

enforcement agency coordination and cooperation within the United States are m 2 "'i'j 0 equally apparent abroad. A Department of State official spoke of learning, when he ;;:;::; tJ !'Tl :g assumed his position, that some 500 relatively independent law enforcement officials rn ~ were acting overseas without the knowledge of the Department of State. On investi gation, that number turned out to be more than 2,000. 125 At the same time, in a

borderless environment for trade and finances, it is not clear how effective traditional

law enforcement methods will be in overseeing customs, maintaining border security,

and enforcing financial regulations.

Although existing policy and practice provide that the "Chief of Mission" in each

Embassy will be responsible for overall law enforcement coordination, it is also

understood that liaison with law enforcement officials abroad is governed by the

home agency. As a practical matter, according to the evidence the Commission

received, U.S. law enforcement and intelligence agencies overseas (the FBI, DEA, Customs, the CIA) compete with each other for access to foreign counterparts and foreign information; Chiefs of Mission are often inexperienced in issues of law enforcement; and Justice, Treasury, and other agencies rarely supervise their overseas agents as well as they are supervised at home. In consequence, key officials in a variety of Washington agencies may be unaware of critical information until it is too

12 late. fi

The Commission believes that the President and Congress must take whatever steps are necessary to ensure greater coordination and cooperation between and among law enforcement and intelligence agencies operating overseas.

The Commission also wants to stress the importance of providing additional funds for research and technology to deal with the challenges of global crime. As is the case with terrorism, the Nation needs to upgrade the technological sophistication of Federal law enforcement to deal with international crime and continue to develop expertise in the languages and customs of foreign nations. Additional research to extend our knowledge of other nations-and how best to apply that knowledge 123 through training and technology-is urgently needed.

IV. Reverse the trend toward federalization.

WE RECO!tiMEND that Congress and the President enact a new "Federaliza- lion Prevention Act" to minimize Federal intrusion into State and local law enforcement and reverse the recent trend toward "federalizing" crime.

Implementing Recommendations

A. Enact a new "Federalization Prevention Act" that requires the Congress and

the Executive Branch to provide a "law enforcement impact statement"-in

addition to the existing budget impact statement-on all law enforcement

legislation. Cll ~-1 B. As part of the new act, require a review of the Federal Criminal Code (Title

18) over a 5-year period by a fully staffed, full-time, nonpartisan expert commission, that is directed to recommend changes in Title 18 to Congress

and the President.

C. The new act should also contain a sunset provision, a requirement that new

provisions that define crimes as Federal should expire after S years unless

Congress acts to extend the definition.

Commentary

The true role of tl1e Federal Government in law enforcement, "the legitimate object of

government" in Lincoln's phrase, is not to appropriate the responsibilities and

functions of local police officials, but to help State and local law enforcement agen

cies carry out their difficult tasks. In that context, this Commission is at least as

concerned with the explosive growth of crimes deemed to be Federal as it is with the

difficulty involved with coordinating many disparate agencies. Lack of coordination

is a management problem that might threaten public safety and almost certainly

124 reduces the effectiveness of the Federal law enforcement system. The federalization

of many common crimes heretofore considered to be matters of State and local

responsibility threatens to create two separate law enforcement systems, and, over the

long term, carries significant risk of bringing law enforcement into disrepute. Citi-

zeus should not be subject to different, competing law enforcement systems, different

penalties depending on which system brings them to trial, and an ever-lengthening

possibility that they might be tried for the same offense more than once.

To bring these realities more into the consciousness of Federal officials, the

Commission suggests establishment of a law enforcement impact statement in

addition to the budget impact statements that now accompany every new Federal

enactment. The law enforcement impact statement should outline the anticipated

effect on law enforcement activities generally of defining criminal activities as

Federal crimes and explain how each new crime brought under the purview of the

Federal Government warrants being made a Federal crime.

The Commission also wants to emphasize the need to recodify the Federal

Criminal Code. For at least 20 years, Congress has been trying to accomplish this, with almost no success at all. The 2-year window during which each individual

Congress has the opportunity to act (before a new Congress convenes and is forced to start all over again) is not sufficient time for this demanding task. Turnover among committee members over the years and changes in which party controls the House and Senate have probably exacerbated this institutional fact of life. The Commission is aware of no State effort to recodify State law that did not depend on expert outside help in the form of advisory groups and commissions of one kind or another. This

Commission believes such an approach can usefully be employed at the Federal level.

With regard to the federalization of crime, the Commission believes only a few crimes should be statutorily defined as Federal in perpetuity. From a public policy perspective, it is appropriate to enact sunset provisions for newly defined Federal crimes, provisions requiring regular review and reaffmnation of the definition of what constitutes a Federal crime.

Finally, the Commission wants to stress the point with which it began this com mentary: In pointing to excessive involvement of the Federal Government in com- 125 mon crime, the Commission is not in any way arguing that the Federal Government has no role in supporting State and local law enforcement efforts. The Commission believes the Federal interest lies in helping States, localities, and individuals do what they "cannot do for themselves, or do as well," to use Lincoln's language. In addition to the Federal Government's inescapable responsibilities for national and transnational crime, it also has an obligation to help fund State and local efforts, provide technical assistance and training, and support research broadly applicable to law enforcement at all levels, Federal, State, and local.

V. Focus on professionalism, integrity, and accountability

WE RECOMMEND that the President and Congress insist that Federal law

enforcement agencies establish new standards for professionalism, integrity, and public accountability. Implementing Recommendations

A. The Attorney General, working with the Interagency Advisory Board,

identified in Recommendation I-E, should be directed to accelerate the

process of standardizing procedures and operations including the develop-

ment of common standards in areas such as investigative guidelines, recruit-

ment, training, classification and use of data, rules of engagement, and the

use of force, including deadly force.

B. Policy and training regarding the use of deadly force should be standardized

across all Federal agencies.

I. The wording of Federal law enforcement policies regarding the use of

deadly force should be identical, providing the same policy and guidance

to law enforcement officials in all Federal agencies.

2. Variations in policy statements should relate to unique agency require

ments only (e.g., the use of warning shots on open water). 126 3. Training on the use of deadly force should be standardized across Federal

agenctes.

r ;p 4. Annually mandated continuing education courses on the use of deadly < IT!'" 2 force should be required of all Federal law enforcement officers and '71 Q ;u should be differentiated from firearms requaliftcation training. n rn £ m Congress should promote professionalism and enhanced accountability by: 2 c ~! 2.'~' 1. Requiring that the curriculum governing training in core law enforcement J::> 2 functions (e.g., constitutional rights, use of force, and protection of crime ~ ~ n rn scenes) be standardized across all Federal agencies while it is simulta- 2 c~! neously supplemented by discrete training in agency-specific issues; rJ ~< :t:::· z: 2. Creating a Federal Law Enforcement Officer Training Board (made up of v > law enforcement experts from Federal, State, and local agencies, along () ~,- 5> 2 with academics and private training specialists) to review training, certify GJ f='l 2 the adequacy of both basic and "in-service" training programs; identify G1 ~.::;: 0 innovative training programs and curricula; and recommend needed ;AI r 0 additional training programs to agencies; 3. Requiring Federal law enforcement agencies to periodically undergo

accreditation by outside agencies, a process enabling law enforcement

leaders to assure members of the public that the law is being enforced

professionally and well. Every Federal crime laboratory should also seek

accreditation as a matter of course.

4. Requiring the development of standardized procedures for responding to

citizens' complaints about Federal law enforcement agencies and offic-

ers-e.g., all complaints will be recorded; all will be investigated as

appropriate; due process will be provided for officers; records and results

of such investigations may be made public; and results should be pro-

vided to officers under investigation.

5. Conducting vigorous oversight to ensure that the Attorney General

develops and implements the policies called for in Recommendation I-

A-policies defining procedures for resolving citizens' complaints about

Federal Jaw enforcement agencies and officers. 127

D. Bring Federal law enforcement into the 21st century with support for the

acquisition of the latest computers and telecommunications technologies and

crime-fighting equipment.

The Attorney General should work with the new Interagency Advisory Board

on Federal Law Enforcement to ensure a high level of ongoing support for

providing, maintaining, and updating computers and telecommunications

equipment. This examination should also include software, databases, and

training needs. It should aim to develop policy-setting aside a specified

percentage of agency budgets for needs that are likely to be ongoing as

technologies mature and equipment becomes more powerful.

E. The Attorney General should also he authorized by Congress to build on

recent progress in advancing analyses of DNA and trace evidence by support-

ing an ongoing national conference, workshop, or se1ninar on forensic

science. Such a continuous seminar or conference can help improve the

science base of law enforcement at all levels, Federal, State, and local. F. The President and Congress should require the Office of Personnel Manage-

ment (OPM) to work with the Attorney General, the President's chief law

enforcement advisor, to examine the need for personnel system reforms for

all Federal law enforcement agencies, including minimum standards for

recruitment, training, promotion, salary and benefits, and other scope of

employment issues.

G. Annual budgets should provide a line item for each law enforcement agency

and the President and Congress should ensure that each such agency is led

by an experienced public manager, preferably with experience in law

enforcement.

Commentary

These recommendations address the public's key concerns about agents' profession-

alism and agency accountability. Properly implemented, these recommendations can

128 alleviate public concern about law enforcement corruption or abuse.

Even after the Commission's first four recommendations are implemented, and

the Nation can look forward to better coordination of Federal agencies, a diminution

of the Federal presence in common crime, and improved procedures for dealing with

both terrorism and global crime, there will still be many Federal agents from many

different Federal agencies working on distinct problems. That is simply the nature of

the complex modem world in which law enforcement is forced to operate. l=l 2 Against that background, there must be some standardization of policy and

procedures affecting the public safety. As the 21st century dawns, it is no longer an

acceptable situation for different Federal officials to be operating under different

standards and procedures governing, for example, how interrogations are to be

conducted or deadly force is to be employed. Discrepancies in areas such as these

simply must be resolved, in the interests of the safety of both the general public and

law enforcement officers.

The Commission considers several policies essential to maintaining public

confidence in the professionalism of Federal agents and the accountability of Federal agencies: common training in core law enforcement functions; certification of the adequacy of training programs; and accreditation of agencies and forensics laboratories. These are all sensible and needed improvements, that should have been implemented many years ago.

Equally urgent is the need to reassure tl1e public that citizens' complaints about the performance of law enforcement officers and agencies will be professionally received, examined, and responded to, as appropriate. The Commission hopes to improve agency accountability in two steps. First, in Recommendation I, the Com mission would require the Attorney General, under the mantle of Executive Order No.

11396, to develop uniform procedures for responding to citizens' complaints. Sec- and, in the final recommendation, the Commission encourages vigorous congressional oversight of the adequacy of the complaint-resolution process.

With respect to computers and telecommunications equipment, the Commission believes that Federal law enforcement agencies must be at least the equal of the criminal enterprises that they confront and investigate. Given the large amounts of 129 money devoted to Federal law enforcement activities, there is no excuse for Federal agencies to have less than the latest equipment, supported by the most advanced software and best training available. The same, of course, holds true for the latest in crime-fighting techniques and weapons.

Despite recent criticisms of the scientific procedures at the FBI Laboratory, law enforcement officials worldwide aclmowledge the preeminent role of forensic science in Federal laboratories in the United States. This is clearly an area where a Federal leadership role is essential. The Commission supports a vigorous Federal leadership role in advancing the art and science of forensics for law enforcement agencies at all levels.

Because agent and agency morale hangs on the issue, the Commission points to the need for well-justified personnel policies across the entire spectrum of Federal law enforcement agencies. It is fundamentally unfair if differing policies create an uneven field for agents. The Commission has been warned that this is an issue requiring resolution. We are unable to confirm that it is a problem, or that it is not a problem. We recommend that OPM, the Attorney General, and the Secretary of the

Treasury examine this issue.

Finally, the Commission believes it is time to provide the law enforcement

function a line item in the budget in each agency that lacks its own. It becomes very

easy, particularly in small agencies, for law enforcement to become subordinate to

other departmental and agency missions. The Commission actually experienced a

great deal of difficulty determining precisely how much is spent on law enforcement

at the Federal level, in part because so many agencies do not specify how much

they spend on law enforcement. To clarify law enforcement expenditures (and to

protect law enforcement funds), it is important to provide these funds in line items in

the budget.

TOWARD A NEW CENTURY AND A CHANGING WORLD

As the United States moves toward the 21st century, grave law enforcement chal-

130 lenges lie ahead. This Commission has produced a five-part action agenda designed

to address those challenges. Although this five-part agenda does not include every

issue requiring attention, it does include the major problems we must address in a

new, changing, and ever more dangerous world. The members of the Commission

believe the public understands the need for these actions and will support

policymal

We urge Congress and the President to move forward with these recommenda-

lions. As Edmund Burke pointed out, the only thing necessary for the triumph of evil

is for good people to do nothing. Equally surely, justice and freedom will triumph if

the American people, through their elected officials, put effective law enforcement at

the top of the Nation's agenda. ENDNOTES

I. The Commission recognizes that Federal prosecutors play a key role in the

enforcement of Federal criminal law. The nature of the Commission's mandate,

however, precluded extensive examination of the Federal prosecutorial role.

2. "[A]n exact count of the present 'number' of Federal crimes ... is difficult to

achieve and the count subject to varying interpretations .... One statutory section

can comprehend a variety of actions, potentially multiplying the number of

Federal 'crimes' that could be enumerated. While a figure of 'approximately

3,000 Federal crimes' is frequently cited ... the present number of Federal crimes

is unquestionably larger.... Ronald L. Gainer...speaking of the situation existing 131 today [1998]. .. notes 'The Federal statutory law today is set forth in the 50 Titles

of the United States Code. Those 50 Titles encompass roughly 27,000 pages of

printed text. Within those 27,000 pages, there appear approximately 3,000

separate provisions that carry criminal sanctions for their violation."' Task

Force on Federalization of Criminal Law (1998), The Federalization of Criminal

Law: D~fending Liberty, Pursuing Justice, Washington, DC: American Bar

Association, p. 93-94.

3. Ibid.

4. 5 U.S.C. § 905(b). The President's authority to reorganize the Executive Branch

lapsed in 1984, when Congress imposed a provision that limited the effective-

ness of Reorganization Plans to those presented before December 31, 1984.

5. To ensure that firearms and drug enforcement activities continue to have high

visibility and access to law enforcement officials at the highest levels, the

Commission believes each of these newly transferred functions should be

headed by a senior official who reports directly to the director of the FBI. 6. Nicholas Rufford (May 23, 1999), "Government Gags Sunday Times," Sunday

Ti1nes (Britain), http://www.Sunday-times.co.uk/news/pages/sti/99/05/23/

stinwenwsOl 029 .html ?000.

7. "1811 Series" employees are defined by the Office of Personnel Management

(OPM) and several sections of Title 4 of the United States Code. These sections

of the Code enable 1811 employees to benefit from premium pay provisions and

certain retirement benefits. These employees conduct criminal investigations of

possible violations of criminal laws.

Examples of other OPM law enforcement occupational series (codes) in-

elude: Correctional Officers (0007); Park Ranger (0025); United States Marshal

(0082); Police (0083); Security Guard (0085); Customs Patrol Officer (1884),

and Border Patrol Agent (1896).

8. These figures represent the total number of sworn officers and combined

budgets as reported in the Commission's agency survey. 132 9. FrederickS. Calhoun (undated manuscript), A Question of Power: The Origins

of Federal Law Enforcement in the United States, Washington, DC: U.S.

Marshals Service.

10. Abraham Lincoln (Nov. 10, 1864), Washington, DC.

11. QS&A Research (Mar. 26, 1999), Opinions About Federal Law Enforcement: A

Sun•ey Research Report, a report prepared for the Commission on the Advance-

ment of Federal Law Enforcement.

12. Ibid, p. 36

13. Ibid, p. 38

14. Ibid, p. 36

15. Ibid, p. 7-8.

16. American Bar Association (Feb. 1999). Perceptions of the U.S. Justice System.

Washington, DC: American Bar Association.

17. SeeNotel. 18. See Bureau of Justice Statistics, U.S. Department of Justice (Dec. 1997). Fed-

era/ Law Enforcemellf Statistics, Swnmmy Findings, Washington, DC: U.S.

Government Printing Office; and Hubert Williams, President, The Police Foun-

dation (July 10, 1998), statement before the Commission on the Advancement of

Federal Law Enforcement, Washington, DC.

19. See Bureau of Justice Statistics, U.S. Department of Justice (Dec. 1998). Fed-

era/ Law Enforceme/11 Statistics, Summa!)' Findings, Washington, DC: U.S.

Government Printing Office.

20. Sources: "8. Enforcing the Law." Budget of the U.S., FY 2000, p. I 19-128. [On-

line via GPO Access]; and The White House, Office of the Press Secretary (Feb.

1, 1999), "President Clinton and Vice President Gore's FY 2000 Budget:

Preparing America for the 21'' Century." http:/lwww. Pub.whitehouse.gov/

21. See Note 7.

22. The Commission's 1998 survey turned up 88,784 personnel authorized to carry 133 firearms in the 14 agencies selected as a sample. Bureau of Justice Statistics

(BJS) survey data for 1996 found 74,500 in 16 agencies.

Appendix G compares increases and decreases in personnel for the same 14

agencies. BJS reported a total of 61, 498 officers in 1996. By adjusting the

Commission's total (88,784) to reflect only full-time Correctional Officers (see

below), the adjusted Commission survey total would be 72,994 officers in 1998,

an increase of II ,496 law officers since 1996.

In 1996, BJS reported 11,329 Correctional Officers. In the 1998 data pro-

vided to the Commission, BOP reported that 28,390 of its employees are quali

fied and certified to carry firearms. Still, not all 28,390 employees carry fire-

arms in the normal course of their duties. The most recent OPM figure shows

that 12,600 full-time Correctional Officers are authorized to carry firearms as a

regular part of their duties.

23. Salvatore R. Martoche, former Assistant Secretary of the Treasury for Law

Enforcement (Nov. 15, 1995), statement before the Subcommittee on Crime, Committee on the Judiciary House of Representatives, Nature, Extellt, and

Pmliferation of Federal Law Enforcement: Part I-An Introduction and Over

view, Washington, DC: U.S. Government Printing Office.

24. Task Force on Federalization of Criminal Law, Federalization of Criminal Law.

25. Stanley E. Morris (Apr. 5, 1999), A Bn"ef History of Federal Law Enforcement,

!789-I999, paper prepared for the Commission on the Advancement of Federal

Law Enforcement.

26. See FrederickS. Calhoun, Question o_f"Power; James D. Calder (1993), The

Origins and Developmellt of Federal Crime Contml Policy: Herbert Hoovers'

Initiatives, Westport, CT: Praeger; and Nancy E. Marion (1994), A History of

Federal Crime Control Initiatives, 1960-I993, Westport, CT: Praeger.

27. Unfolding news accounts on the investigation of Russian money flowing

through the Bank of New York illustrate the problems of coordination and of

determining who is in charge. According to the New York Times, an obscure 134 company (Benex) moved about $7.5 billion from Russia through bank accounts

in the Bank of New York, from 1996 to August 1999. Long-standing rivalry and

differences in the thoroughness of investigative methods between the New York

FBI office and the Manhattan District Attorney reportedly kept each from

sharing case information with the other. Meanwhile, a State Department repre

sentative returned from London in March 1999 with information obtained from

British investigators who had reportedly received sensitive information from the

FBI. Upset that the FBI reportedly did not inform the Administration about the

scale of the problem, the State Department then informed other agencies includ-

ing the CIA and the Justice Department. The Manhattan District Attorney

preferred to work with the Customs Service. The article also reports that the

Attorney General was not briefed until after the New York Times reported the

investigation in August 1999.

The title of Chapter Two of this report is "Coordination: Who's in Charge of

What?" A subtitle in the New York Times article is, "The Rivals: Whose Turf is

it, Contenders Ask." See Timothy L. O'Brien and Lowell Berman (Sept. 29, 1999), "Law Enforcement Rivalry in U.S. Slowed Inquiry on Russian

Funds," New York Times.

28. William H. Webster and Hubert Williams (Oct. 21, 1992), The City in Crisis: A

Report by the Special Adviser to the Board of Police Commissioners on the Civil

Disorder in Los Angeles, pp. 155-156.

29. One way to understand the role of an Office of the Inspector General is to think

of the Inspector General as an internal policeman who monitors fraud, waste,

and abuse in Federal agencies.

30. F.T. Davis, Attorney, Long, Aldridge & Norman, LLP (Jan. 14, 1999), statement

before the Commission on the Advancement of Federal Law Enforcement.

31. See Commission on the Advancement of Federal Law Enforcement (Mar. 1999),

Analysis ofSun•ey Respondents' Answers to Questions, Washington, DC:

Commission on the Advancement of Federal Law Enforcement (hereafter

referred to as Commission Survey); see also, Cornelius J. Behan (Apr. 1999), 135 memorandum for the Commission on the Advancement of Federal Law Enforce-

ment.

32. Response from U.S. Secret Service, Commission Survey.

33. Vice President AI Gore (Sept. 7, 1993), "From Red Tape to Results: Creating a

Government that Works Better and Costs Less." http://www/npr.gov.library/.

34. U.S. General Accounting Office (Dec. 5, 1994), "Implementation of NPR

Recommendations: Justice Department, Part ]."

edu/notes/homepage/240a.html

35. See, for example, statements before the Commission on the Advancement of

Federal Law Enforcement by Louis Cannon, Fraternal Order of Police (Oct. 5,

1998); A.N. "Bubby" Moser, National Sheriffs' Association (Aug. 24, 1998);

Chief Richard W. Myers, Appleton, Wisconsin (Aug. 25, 1998); and Bob Ricks,

Oklahoma Director of Public Safety (Aug. 25, 1998).

36. Jami St. Clair, Director, Columbus Crime Laboratory (July 9, 1998), statement

before the Commission on the Advancement of Federal Law Enforcement. 37. The kidnapping of this American hero's son led directly to the designation of

kidnapping as a Federal crime.

38. See Commission Survey and Cornelius J. Behan, memorandum for the Commis

sion on the Advancement of Federal Law Enforcement.

39. Louis J. Freeh, Director, Federal Bureau oflnvestigation (Dec. I, 1998), state-

ment before the Commission on the Advancement of Federal Law Enforcement.

40. Cornelius J. Behan, Major Cities Chiefs Association (May 18, 1998), statement

before the Commission on the Advancement of Federal Law Enforcement.

41. See Commission Survey and Cornelius J. Behan, memorandum for the Commis-

sian on the Advancement of Federal Law Enforcement.

42. Commission on the Roles and Capabilities of the United States Intelligence

Community (Mar. 1996), Preparing for the 21st Centlll)': An Appraisal of U.S.

Intelligence, Washington, DC: Commission on Roles and Capabilities of the 136 United States Intelligence Community. (http://www.access.gpo/su_docs/dpos/ epubs/int/report.html) Note: The Commission on the Advancement of Federal

Law Enforcement acknowledges and endorses the contributions and recommen- r > ~ dations contained in the Commission's intelligence community report on the m 2 "11 need for a coordinated response to global crime. () ;7J f'1 m 43. Michael R. Bromwich, Inspector General, Department of Justice (June 24, 1997) m<: 2 =l statement before the Subcommittee on Government Management and Techno!- 1=1z ogy, Committee on Government Reform and Oversight, United States House of

Representatives (http://www.usdoj.gov/oig/tes62497 .htm)

44. AI Gore, Red Tape to Results. Note: The Commission acknowledges and

appreciates the observations and recommendations made in Vice President AI

Gore's Report, here and in subsequent sections of this report.

45. Michael R. Bromwich, Statement of June 24, 1997.

46. Phil Newsome, Deputy Assistant Inspector General for Investigations, Depart-

ment of Housing and Urban Development (Apr. 9, 1999), telephone interview. 47, U,S, Department of Housing and Urban Development, "A Career as an OIG

Special Agent," Washington, DC: U,S, Government Printing Office (HUD

publication), (http://wwwJJUd,gov/oig/special agent employmenthtrnl)

48, Phil Newsome (Apr, 9, I 999), telephone interview,

49, Frank J, Cilluffo and Michael Paul Palaschak, Report to the Commission 011 the

Advanceme11t of Federal Law Enj'orceme11t (Mar, 22, 1999), paper prepared for

the Commission on the Advancement of Federal Law Enforcement

50, Janet Reno, Attorney General of the United States (May I 8, 1998), statement

before the Commission on the Advancement of Federal Law Enforcement

5 L Louis J, Freeh, Director, Federal Bureau of Investigation (Dec, 1, 1998), state-

men! before the Commission on the Advancement of Federal Law Enforcement

52, See "Testimony of The Honorable Morris D, Busby, before the United States

Permanent Subcommittee on Investigations, Committee on Governmental

Affairs," Mar, 27, 1996, 137

53, Cable News Network (1998), "Rudolph Charged in Olympic Bombing,"

www,CNN,Com,

54, The Honorable Morris D, Busby, testimony of Mar, 27, 1996,

55, Frank J, Cilluffo and Michael Paul Palaschal(, Report to the Commissio11,

56, Ibid,

57, For a discussion of these tensions see the 1996 report of the Commission on the

Roles and Capabilities of the Untied States Intelligence Community, Prepari11g

for the 21st Celllwy,

58, Jonathan M, Winer, statement of June 29, 1999,

59, Robert K Rubin, Secretary of the Treasury (May 18, 1998), statement before the

Commission on the Advancement of Federal Law Enforcement

60, Attorney General Reno, statement of May 18, 1998,

6L Oliver "Buck" Revell (retired FBI official) (July 10, 1998), statement before the

Commission on the Advancement of Federal Law Enforcement 62. Frank J. Cilluffo and Michael Paul Palaschak, Report to the Commission.

63. Ibid.

64. Task Force on Federalization of Criminal Law, Federalization of Criminal Law.

65. Center for Strategic and International Studies (CSIS) (1998),

Cybercrime ... Cyberterrorism ... Cyberwmfare .. .Averting an Electmnic Waterloo,

Washington, DC: CSIS Global Organized Crime Project.

66. Jonathan M. Winer, statement of June 29, 1999.

67. Ibid.

68. CSIS, Cybercrime.

69. Jonathan M. Winer, statement of June 29, 1999

70. CSIS, Cybercrime.

71. QS&A, Opinions.

138 72. Attorney General Reno, statement of May 18, 1998.

73. Louis J. Freeh, Director, Federal Bureau of Investigation (Dec. 1, 1998), state-

ment before tbe Commission on the Advancement of Federal Law Enforcement.

74. Jonathan M. Winer, statement of June 29, 1999.

75. Jonathan M. Winer, statement of June 29, 1999.

76. Since 1968, firearms have been entering tbe legal civilian marketplace at the rate

of approximately 5 million to 6 million per year. On average, a firearm moves

between licensed dealers about 5 times before the first retail purchase. AJl of

this data is kept by tbe licensed dealers and is available for tracing at all times.

Further, the licensees pay all the storage costs, the filing costs, and do all of the

searches.

77. White House, "Fact Sheet, President's Commission on Critical Infrastructure

Protection." (http://www. whitehouse.gov)

78. White House, "Fact Sheet, Protecting America's Critical Infrastructures: PDD

63," May 22, 1998. 79. Michael A. Vatis, National Infrastructure Protection Center, FBI (Mar. 16,

1999), statement before the Senate Armed Services Committee.

80. John Markoff (July 28, 1999), "U.S. Drafting Plan for Computer Monitoring

System," New York Times. (http://www.nytimes.com)

81. "NIPC: Industry Must Assume Responsibility to Protect Itself," D~fense lnfor-

motion and Electronics Report (Jan. 29, 1999). IV:4.

82. John Markoff, "U.S. Drafting Plan for Computer Monitoring System."

83. Ibid.

84. John Schwartz (Apr. 16, 1999), "Privacy Policy vs. Practice," The Washington

Post, p. A-27.

85. Tim Weiner, "U.S. Drafting Plan for Computer Monitoring System," New York

Times, July 29, 1999. (http://www.nytimes.com)

86. Robert O'Harrow, Jr. (Aug. 20, 1999), "Justice Dept. Pushes for Power to 139 Unlock PC Security Systems," The Washington Post, p. A-10.

87. See note 20.

88. See note 2.

89. FrederickS. Calhoun, Question ofPowa

90. Task Force on Federalization of Criminal Law, Federalization of Criminal Law.

91. Subcommittee on Crime, Nature Extent, and Prolif'eration of Federal Law

Enforcement (Part I-An flllroduction and Overview).

92. Hubert Williams, President, The Police Foundation (July 10, 1998), statement

before the Commission on the Advancement of Federal Law Enforcement.

93. Task Force on Federalization of Criminal Law, Federalization of Criminal Law.

94. See "Scientific Investigation: The Wickersham Commission," (Chapter 4 in

James D. Calder, The Origins and Development of Federal Crime Control

Policy: Herbert Hoovers' Initiatives.) 95. Task Force on Federalization of Criminal Law, Federalization of Criminal Law.

96. Ibid.

97. Ibid.

98. Ibid.

99. Louis J. Freeh, Director, statement of Dec. I, 1998.

100. Attorney General Reno, statement of May 18, 1998.

101. Commission survey.

102. U.S. Department of Justice, Office of Investigative Agency Policies, Resolution

14, "Policy on Use of Deadly Force," guided by Tennessee v. Gamer, 471 U.S. 1

(1985) and Graham v. Conner, 490 U.S. 3896 (1989).

103. Louis J. Freeh, Director, Federal Bureau of Investigation (Oct. 19, 1995),

Opening Statement before the Subcommittee on Terrorism, Technology, and

Government Information, Committee on the Judiciary, Ruby Ridge Hearing, 140 U.S. Senate, Washington. DC. It should be noted that the FBI sniper at Ruby

Ridge testified that he followed the traditional FBI standards on the use of

deadly force rather than the allegedly modified standards.

104. Cornelius J. Behan, statement of May 18, 1998.

105. Based on responses to its questionnaire, the Commission judges that approxi

mately 550 citizen complaints about abuses by agency personnel are registered

against Federal law enforcement officers annually.

106. Samuel Wall

statement before the Commission on the Advancement of Federal Law Enforce-

men!.

107. Robert Stewart, National Organization of Black Law Enforcement Professionals

(Aug. 24, 1998), statement before the Commission on the Advancement of

Federal Law Enforcement.

108. Gregory Nojeirn, American Civil Liberties Union (Aug. 24, 1998), statement

before the Commission on the Advancement of Federal Law Enforcement; and Clyde Davis, National Association for Civilian Oversight of Law Enforcement

(August 24, 1998), statement before the Commission on the Advancement of

Federal Law Enforcement

109. Tanya Metaksa, National Rifle Association (Aug. 24, 1998), statement before

the Commission on the Advancement of Federal Law Enforcement

110. Sylvester Daughtry, Jr. and Richard Kitterman, Commission on the Accreditation

for Law Enforcement Agencies, Inc. (July 9, 1998), statements before the

Commission on the Advancement of Federal Law Enforcement

111. To ensure that firearms and drug enforcement activities continue to have high

visibility and access to law enforcement officials at the highest levels, the

Commission believes that each of these newly transferred functions should be

headed by a senior official who reports directly to the director of the FBI.

112. In the early 1980s, when William French Smith was Attorney General, Rudolph

W. Guliani, then Associate Attorney General, oversaw a study that recom- 141 mended the merger of the DEA into the FBI. In 1993, Vice President Al Gore

made the same recommendation in his report, Red Tape to Results.

113. Ibid.

114. Lyndon B. Johnson: 1968-69 (Book I) (1970), Public Papers of the Presidents of

tlze United States, Washington, DC: U.S. Government Printing Office, p. 197.

115. U.S. General Accounting Office (Mar. 21, 1990). "Justice Department: Coordi-

nation between DEA and the FBI." Washington, DC: U.S. General Accounting

Office (GAO/GGD-90-59).

116. Ibid, p 28. Note: GAO made no references on any nuances in the laws or author-

ity of each organization. The FBI's statutory authority in controlled substance

violations and powers of enforcement personnel are contained in Title 21,

United States Code, §§ 876, 878, and 88 I.

117. Vice President AI Gore, Red Tape to Results. Note: GAO did not take a position

as to whether the various law enforcement agencies should be consolidated in

one or more agencies. ("Implementation of NPR Recommendations: Justice Department Part 1," Updated Dec. 5, 1994. DOJ 101 Section14:2.l.2)

http://www.caJ1iope.hcsa.uiuc.edu/notes/homepage/340a.html .

118. Vice President AI Gore, Red Tape ta Results.

119. New York Times (Aug. 4, 1998), "Tracing Money, Swiss Outdo U.S. on Mexico

Drug Corruption Case."

120. Ibid.

121. For a discussion of lbese tensions, see the 1996 report of the Commission on the

Roles and Capabilities of the Untied States Intelligence Community, Preparing

for the 21st Centw)'·

122. Jonathan M. Winer, statement of June 29, 1999.

123. CSIS, Cybercrime.

124. The European Institute, Transatlantic Seminar on Legislative and Regulat01y

Responses to Intemational Crime and Terrorism (1998), Washington, DC: The 142 European Institute.

125. Jonathan M. Winer, statement of June 29, 1999.

126. Jonathan M. Winer, statement of June 29, 1999. SELECTED BIBLIOGRAPHY

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before the Commission on the Advancement of Federal Law Enforcement. APPENDIXES

Appendix A. Biographies of the Commissioners 160 Appendix B. Authorizing Legislation 164 Appendix C. Federal Organizations with Some Law Enforcement Functions 168 Appendix D. Executive Order No. 11396 172 Appendix E. Commission Meetings and Witnesses 174 Appendix F. Expert Papers and Advisors 181 Appendix G. Personnel Authorized to Carry Firearms in . 14 Federal Agencies 183 Appendix H. Acknowledgments 184

159

i={ 2 APPENDIX A. BIOGRAPHIES OF THE COMMISSIONERS

William H. Webster, Chairman

William H. Webster has been a senior partner in the Washington, D.C., office of

Milbank, Tweed, Hadley & McCloy since 1991. He was Director of Central Intelli

gence for the United States-sworn in on May 26, 1987-for the prior 4 years.

Judge Webster began his career as a practicing attorney in St. Louis, Missouri, in

1949. He served as the U.S. Attorney for the Eastern District of Missouri from 1960

to 1961, was appointed as a judge of the U.S. District Court for the Eastern District of

160 Missouri in 1970, was elevated to the U.S. Court of Appeals for the Eighth Circuit in 1973, and was named Director of the Federal Bureau of Investigation in 1978.

Over his more than half-century career, Judge Webster has been recognized on

numerous occasions for his outstanding service. Some of his awards include: the

Distinguished Intelligence Medal, the Presidential Medal of Freedom, and the

National Security Medal in 1991; St. Louis Globe-Democrat Man of the Year in

1980; William Greenleaf Elliot Award from Washington University and the Riot

Relief Award in 1981; the Jefferson Award for the Greatest Public Service by an

Elected or Appointed Official in 1984; and the Freedom Foundation's National

Service Medal and first recipient of the first annual Patrick V. Murphy Award from

the Police Foundation in 1985. Judge Webster is a current a member of the Ameri

can Bar Association, the Council of the American Law Institute, the Order of the

Coif, the Missouri Bar Integrated, and the Metropolitan St. Louis Bar Association.

He was also elected to active membership in the National Academy of Public Admin-

istration in 1981 and served as President of the Institute of Judicial Administration

from 1985 to 1988. Judge Webster earned his Bachelor of Arts from Amherst College and his Juris

Doctor from Washington University Law School, St. Louis. He has been awarded an honorary Doctor of Laws from Amherst College. He served as a Lieutenant in the

U.S. Navy during World War II and during the Korean War.

Donald C. Dahlin

Donald C. Dahlin is Vice President for Academic Affairs at the University of South

Dalmta, Vermillion, South Dakota, where he teaches in the Criminal Justice Studies

Program as well. He is also a Fellow of the Institute of Court Management.

Dr. Dahlin has extensive experience in all aspects of the criminal justice system.

Over the course of his career, he has held a variety of criminal justice-related posi tions, including: Management Analyst for the Law Enforcement Assistance Adminis-

!ration; Director of the Criminal Justice Studies Program, University of South Dalmta;

Secretary of Public Safety for South Dakota; member of the Governor's Corrections 161 Commission; and Chair of South Dakota's Youth Advocacy Project. He has also taught at South Dakota's Law Enforcement Training Academy; served as a consultant to State and local criminal justice agencies; chaired the Section on Criminal Justice

Administration of the American Society of Public Administration; and authored a number of articles on judicial administration, violence and the police, rural crime prevention, the role of the public defender, and jails.

Dr. Dahlin earned his Bachelor of Arts degree from Carroll College in Waukesha,

Wisconsin, and his Ph.D. from Claremont Graduate School in Claremont, California.

Gilbert G. Gallegos

Gilbert G. Gallegos is National President of the Fraternal Order of Police. In that position, he is responsible for administration of the Grand Lodge, which is located in

Washington, D.C., and, with its 283,000 members, is the largest law enforcement labor organization in the United States. In addition, as Drug Enforcement Coordina- tor for the Region I Drug Enforcement Council, Mr. Gallegos is responsible for management of drug enforcement efforts of a multi-agency task force that includes

both State and local agencies.

Mr. Gallegos has more than 34 years of experience in law enforcement, including

labor and management relations, drug enforcement, criminal justice policy develop-

ment, and employee rights. He spent 25 years of his career with the Albuquerque

Police Department, retiring as Deputy Chief of Police.

Mr. Gallegos is a board member of the New Mexico Council on Crime and

Delinquency, the National Center for Missing and Exploited Children, the Fraternal

Order of Police Foundation, and the National Law Enforcement Credentialing Board,

and is a member of the Latino Police Officers Association, the Chicano Police

Officers Association, and the Fraternal Order of Police. He holds a Bachelor of

Science in Criminology from the University of Albuquerque, and also graduated from

the Southern Police Institute Administrative Course, University of Louisville, and the

Federal Bureau of Investigation National Academy. 162

Robert E. Sanders, Esq.

Robert E. Sanders is a criminal defense attorney with 40 years' experience in Federal

criminal investigations, prosecutions, and criminal defense. He began to practice

criminal defense law in 1984, after 24 years in Federal law enforcement as a Special

Agent for the U.S. Department of the Treasury. Within the Bureau of Alcohol,

Tobacco, and Firearms, Mr. Sanders held every supervisory, management, and

executive position in law enforcement, including: Special Assistant on Law Enforce

ment Matters to the Assistant Secretary of the Treasury; first-line supervisor; Chief,

Organized Crime Branch; Special Agent in Charge, Chicago, Illinois.; Regional

Director, Midwest Region; and Assistant Director, Criminal Investigations. He also

served with the Department of State as a Public Safety Advisor to the National Police

of South Vietnam.

Mr. Sanders is a member of the Bar in Washington, D.C., and the State of Illinois.

In addition, he is a life member of the International Association of Chiefs of Police

and served for 10 consecutive years on its Organized Crime Committee and for 3 years on its Firearms and Explosives Committee. He is also a member of the National

Association of Criminal Defense Lawyers and is a member of, and Associate Counsel for, the National Association of Treasury Agents. Mr. Sanders earned his Bachelor of

Arts in History and Political Science from the University of Miami, Coral Gables,

Florida, and his Juris Doctor from Northern Illinois School of Law, DeKalb, Illinois.

Robert M. Stewart

Robert M. Stewart is Chief of the South Carolina Law Enforcement Division

(SLED)-the criminal investigative agency of the State of South Carolina-a position he has held since 1988. SLED has 600 employees, earned national accreditation through the Commission on Accreditation for Law Enforcement Agencies (CALEA), maintains a forensic science laboratory-which is accredited through the American

Society of Crime Laboratory Directors (ASCLAD)-and has a Criminal Justice

Information Services Center. 163 Chief Stewart has devoted his professional life to the law enforcement community and the State of South Carolina. He began his career at the age of 17 as a cadet in the Cheraw (S.C.) Police Department. He was named Director of Public Safety for that department at age 29 and joined SLED in 1975.

Although white-collar crime-especially corruption by public officials-has been an area of specialization, over the course of his career, Chief Stewart has: served as a member of the SLED SWAT Team; coordinated SLED's joint investigations with

Federal law enforcement agencies, while assigned to the U.S. Attorney's Office; and served as SLED Coordinator with the Presidential Drug Task Force, which tracked down and prosecuted drug smuggling "kingpins" from the Caribbean to Australia.

Chief Stewart holds a Bachelor of Arts and a Master's in Public Administration from the University of South Carolina. He is also a graduate of the Federal Bureau of

Investigation National Academy and the Federal Bureau of Investigation National

Executive Institute. B. SECTION 806: ANTITERRORISM AND EFFECTIVE DEATH PENAL TV ACT OF 1996 (PUBLIC LAW 104-132, 104TH CONGRESS)

SEC. 806. COMMISSION ON THE ADVANCEMENT OF FEDERAL LAW ENFORCEMENT.

(a) Establishment-There is established a commission to be known as the "Commis-

sian on the Advancement of Federal Law[[Page 110 STAT. 1306]]Enforcement"

(hereinafter in this section referred to as the "Commission").

(b) Duties- Commission shall review, ascertain, evaluate, report, and recommend

164 action to the Congress on the following matters:

(1) The Federal law enforcement priorities for the 21st century, including

Federal law enforcement capability to investigate and deter adequately the

threat of terrorism facing the United States.

(2) In general, the manner in which significant Federal criminal law enforce-

ment operations are conceived, planned, coordinated, and executed.

(3) The standards and procedures used by Federal law enforcement to carry

out significant Federal criminal law enforcement operations, and their

uniformity and compatibility on an interagency basis, including standards

related to the use of deadly force.

(4) The investigation and handling of specific Federal criminal law enforce-

ment cases by the United States Government and the Federal law enforce-

ment agencies therewith, selected at the Commission's discretion.

(5) The necessity for the present number of Federal law enforcement agencies

and units. (6) The location and efficacy of the office or entity directly responsible, aside

from the President of the United States, for the coordination on an inter-

agency basis of the operations, programs, and activities of all of the

Federal law enforcement agencies,

(7) The degree of assistance, training, education, and other human resource

management assets devoted to increasing professionalism for Federal law

enforcement officers.

(8) The independent accountability mechanisms that exist, if any, and their

efficacy to investigate, address, and to correct Federal Jaw enforcement

abuses,

(9) The degree of coordination among law enforcement agencies in the area of

international crime and the extent to which deployment of resources

overseas diminishes domestic law enforcement

(1 0) The extent to which Federal law enforcement agencies coordinate with 165 State and local law enforcement agencies on Federal criminal enforcement

operations and programs that directly affect a State or local law enforce-

ment agency's geographical jurisdiction.

( 11) Such other related matters as the Commission deems appropriate.

(1) Number and appointment-The Commission shall be composed of 5

members appointed as follows:

(A) I member appointed by the President pro tempore of the Senate.

(B) I member appointed by the minority leader of the Senate.

(D) I member appointed by the minority leader of the House of

Representatives, [[Page 110 STAT 1307]]

(E) I member (who shall chair the Commission) appointed by the Chief

Justice of the Supreme Court (2) Disqualification.-A person who is an officer or employee of the United

States shall not be appointed a member of the Commission.

(3) Terms.-Each member shall be appointed for the life of the Commission.

(4) Quorum.-3 members of the Commission shall constitute a quorum but a

lesser number may hold hearings.

(5) Meetings.-The Commission shall meet at the call of the Chair of the

Commission.

(6) Compensation.-Each member of the Commission who is not an officer

or employee of the Federal Government shall be compensated at a rate

equal to the daily equivalent of the annual rate of basic pay prescribed for

level IV of the Executive Schedule under section 5315 of title 5, United

States Code, for each day, including travel time, during which the member

is engaged in the performance of the duties of the Commission.

166 (d) Staffing and Support Functions.-

(1) Director.-The Commission shall have a director who shall be appointed

by the Chair of the Commission.

(2) Staff.-Subject to rules prescribed by the Commission, the Director may

appoint additional personnel as the Commission considers appropriate.

(3) Applicability of certain civil service laws.-The Director and staff of the

Commission shall be appointed subject to the provisions of title 5, United

States Code, governing appointments in the competitive service, and shall

be paid in accordance with the provisions of chapter 51 and subchapter III

of chapter 53 of that title relating to classification and General Schedule

pay rates.

(e) Powers.-

(1) Hearings and sessions.-The Commission may, for the purposes of

carrying out this Act, hold hearings, sit and act at times and places, take

testimony, and receive evidence as the Commission considers appropriate. The Commission may administer oaths or affirmations to witnesses

appearing before it. The Commission may establish rules for its proceed-

ings.

(2) Powers of members ,md agents.-Any member or agent of the Commis-

sian may, if authorized by the Commission, take any action which the

Commission is authorized to take by this section.

(3) Obtaining official data.-The Commission may secure directly from any

department or agency of the United States information necessary to enable

it to carry out this section. Upon request of the Chair of the Commission,

the head of that department or agency shall furnish that information to the

Commission, unless doing so would threaten the national security, the

health or safety of any individual, or the integrity of an ongoing investiga-

lion.

(4) Administrative support services.-Upon the request of tim Commission, 167 the Administrator of General Services shall provide to the Commission, on

a reimbursable basis, the administrative support services necessary for the

Commission to carry out its responsibilities under this title.[[Page 110

STAT. 1308]] (f) Report.-The Commission shall transmit a report to the

Congress and the public not later than 2 years after a quorum of tl1e

Commission has been appointed. The report shall contain a detailed

statement of the findings and conclusions of the Commission, together

with the Commission's recommendations for such actions as the Commis-

sian considers appropriate.

(f) Termination.-The Commission shall terminate 30 days after submitting the

report required by this section. APPENDIX C. fEDERAl ORGANIZATIONS WITH SOME LAW ENFORCEMENT fUNCTIONS*

Executive Branch Agencies

Department of Agricultural Marketing Service Agriculture Agricultural Stabilization and Conservation Service Animal and Plant Health Inspection Service Federal Crop Insurance Corporation Federal Grain Inspection Service Food and Nutrition Service Food Safety and Inspection Service Foreign Agricultural Service Forest Service Office of. Inspector General Packers and Stockyards Administration

168 Department of Economic Development Administration Commerce National Institute of Standards and Technology National Marine Fisheries Services Office of Security Office of Export Enforcement Office of Inspector General

Departmenlof Defense Defense Intelligence Agency Defense Investigative Service Defense Logistics Agency Defense Mapping Agency Defense Protective Service National Security Agency Naval Investigative Service Office of Inspector General United States Air Force United States Army United States Marine Corps United States Navy

Department of Education Office of Inspector General

Department of Energy Federal Energy Regulatory Commission Office of Inspector General

Note: This list first appeared in the U.S. General Accounting Ofiicc report Federal Crlminal.lustice System-A Model to E~·timate Sy.nem Workload {Apr. 1991), Washington, DC: U.S. Government Printing Office (GAO GGD-91~75). 1l1e report listed 148 Fcdeml organizations with some law enforcement functions. TI1at report was, perhaps, the source for the more than 140 agencies with some law enforcement function that appeared in the AI Gore National Peifomumce Re1•iell' report of 1993. Department of Health Alcohol, Drug Abuse, and Mental Health Administration and Human Services Centers for Disease Control Food and Drug Administration Health Care Financing Administration Health Resources and Services Administration National Institutes of Health Office of Inspector General Social Security Administration

Department of Housing Fair Housing and Equal Opportunity Office of Inspector General and Urban Development

Department of the Bureau of Indian Affairs Interior Bureau of Land Management Bureau of Reclamation Geological Survey National Park Seriice Office of Inspector General Office of Surtace Mining, Reclamation, and Enforcement United States Fish and Wildlife Service

Department of Justice AntilriJst.!Jivision Bureau of Prisons Civil Rights Division Criminal Division Drug Enforcement Administration Executive Office for U.S. Attorneys Federal Bureau of Investigation Immigration and Naturalization Service Land and Natural Resources Division 169 Office of Inspector General Tax Division United States Marshals Service United States Parole Commission

Department of Labor Employment and Training Administration Employment and Standards Administration Labor Management Services Administration Mine Safety and Health Administration Occupational Safety and Health Administration Office of Inspector General

Department of State Bureau ofDiplomatic Security Bureau of Oceans and International Environmental and Scientific Affairs Office of Inspector General

Department of Federai.Aviation Administration Federal Highway Administration Transportation Federal Railroad Administration Maritime Administration National Highway Traffic Safety Administration Office of Inspector General St. Lawrence Seaway Development Corporation United States Coast Guard ::::-1 United States Merchant Marine Academy

Department of Bureau of Alcohol, Tobacco, and Firearms the Treasury Bureau of Engraving and Printing Financial Crimes Enforcement Network Internal Revenue Service Office of Inspector General Untted States Customs Service United States Mint United States Secret Service Department of Office of Inspector General Veterans Affairs

Independent Establishments and Government Corporations Agencies

ACTION, Office of Inspector General Agency for International Development, Office of Inspector General Appalachian Regional Commission, Office of Inspector General Board of Governors for the Federal Reserve System, Office of Inspector General Board of International Broadcasting, Office of Inspector General Central intelligence Agency, Office of Security Central intelligence Agency, Office of Inspector General Commodity Futures Trading Commission, Office of Inspector General Consumer Product Safety Commission, Office of Inspector General Corporation for Public Broadcasting, Office of Inspector General Environmental Protection Agency, Office of Criminal investigations Environmental Protection Agency, Office of Inspector General Equal Employment Opportunity Commission, Office of Inspector General 170 Farm Credit Administration, Office of Inspector General Federal Communications Commission, Office of Inspector General Federal Deposit Insurance Corporation, Office of Inspector General Federal Election Commission, Office of Inspector General Federal Emergency Management Agency, Office of Inspector General. Federal Emergency Management Agency, Security Division Federal Home Loan Bank Board, Office of Inspector General Federal Labor Relations Authority, Office of Inspector General Federal Maritime Commission, Office of Inspector General Federal Trade Commission, Office of Inspector General General Services Administration, Office of Inspector General General Services Administration, Office of Physical Security and Law Enforcement Interstate Commerce Commission, Office of Inspector General National Aeronautics and Space Administration, Office of Inspector General National Archives and Records Administration, Office of Inspector General National Credit Union Administration, Office of Inspector General National Endowment for the Arts, Office of Inspector General National Endowment for the Humanities, Office of Inspector General National Labor Relations Board, Office of Inspector General National Science Foundation, Office of Inspector General Nuclear Regulatory Commission, Office of Inspector General Office of Personnel Management, Office of Inspector General Panama Canal Commission, Office of Inspector General Peace Corps, Office of Inspector General Pension Benefit Guaranty Corporation, Office of Inspector General Railroad Retirement Board, Office of Inspector General Securities and Exchange Commission, Office of Inspector General Small Business Administration, Office of Inspector General Tennessee Valley Authority, Land between the Lakes Patrol Tennessee Valley Authority, Office of Inspector General Tennessee Valley Authority, Public Safety Service United States Information Agency, Office of Inspector General United States lnternationaiTrade Commission, Office of Inspector General · United States Postal Service, Office of Inspector General

Quasi-Official Agencies Agencies

Amtrak Northeast Corridor Police Amtrak, Office of Inspector General . Legal Services Corporation, Office of Inspector General Smithsonian 19stitution, National Zoological Park Smithsonian Institution, Office of Inspector General Smithsonian Institution, Officeof Protection Services

Legislative Branch Agencies

. General Accounting Office, .Office of Special investigations Government Printing Office Library of Congress Police United States Capitol Police

Judicial Branch Agencies

United States Supreme Court Police 171 Federal Judicial Center

Total Departments and Total Agencies in all Branches Organizations in all Branches 18 148

Source: United States General Accounting Office, Federal Criminal Justice System: A Model to Estimate System Workload (Report to the Committees on the Judiciary, U.S. Senate and House of Representa tives, April 1991 ). APPENDIX D. EXECUTIVE ORDER NO. 11396 OF FEB. 7, 1968

(Providing for the coordination by the Attorney General of Federal law en-

forcement and crime prevention programs)

WHEREAS the problem of crime in America today presents the Nation with a major

challenge calling for maximum law enforcement efforts at every level of Government;

WHEREAS coordination of all Federal criminal law enforcement activities and

crime prevention programs is desirable in order to achieve more effective results;

WHEREAS the Federal Government has acknowledged the need to provide assis- 172 tance to State and local law enforcement agencies in the development and administra

tion of programs directed to the prevention and control of crime;

WHEREAS to provide such assistance the Congress has authorized various depart

ments and agencies of the Federal Government to develop programs which may

benefit State and local efforts directed at the prevention and control of crime, and the

coordination of such programs is desirable to develop and administer them most

effectively; and

WHEREAS the Attorney General, as the chief law officer of the Federal Govern-

ment, is charged with the responsibility for all prosecutions for violations of the

Federal criminal statutes and is authorized under the Law Enforcement Assistance

Act of 1965 (79 Stat. 828) to cooperate with and assist State, local, or other public or

private agencies in matters relating to law enforcement organization, techniques and

practices, and the prevention and control of crime:

NOW, THEREFORE, by virtue of the authority vested in the President by the

Constitution and laws of the United States, it is ordered as follows: Section I. The Attorney General is hereby designated to facilitate and coordinate (1)

the criminal law enforcement activities and crime prevention programs of all Federal

departments and agencies, and (2) the activities of such departments and agencies

relating to the development and implementation of Federal programs which are

designed, in whole or in substantial part, to assist State and local law enforcement

agencies and crime prevention activities. The Attorney General may promulgate such

rules and regulations and talce such actions as he shall deem necessary or appropriate

to carry out his functions under this Order.

Section 2. Each Federal department and agency is directed to cooperate with the

Attorney General in the performance of his functions under this Order and shall, to

the extent permitted by law and within the limits of available funds, furnish him such

reports, information, and assistance as he may request.

Source: The provisions of Executive Order No. 11396 of Feb. 7, 1968, appear at 33 FR 2689, 3 CFR, 1966-1970 Camp., p. 711. 173 APPENDIX E. COMMISSION MEETINGS AND WITNESSES

Meeting Date* Presentations

May 18, 1998 The Honorable Janet Reno, Attorney General of the

United States, U.S. Department of Justice

The Honorable Robert E. Rubin, Secreta/)' of the

TreaSllJ)'

Cornelius J. Behan, Legislative Liaison, Major Cities

Chiefs of Police Association 174 Sheriff Fred W. Scoralick, President, National Sheriffs'

Association

July 9-10, 1998 Richard Dienst, General Counsel, National Association

of Treasw)• Agellts

Sylvester Daughtry, Jr., Chainnan, Commission on

Accreditation of Law Enforcement Agencies, Inc.

Frank Fitzpatrick, President, American Society of

Crime Laboratmy Directors, Inc.

James L. Jorgensen, Deputy Executive Directm;

National Association of Treasury Agents

Richard Kitterman, Directm; Commission on Accredi-

tation of Law Enforcement Agencies, Inc.

* All meetings took place in Washington, DC. Gerard Lynch, Presidellt, Regional Information Sharing

System ( RISS)

Jami St. Clair, Presidem-E!ect, American Society of

Crime LaboratOI)' Directors

Oliver "Buck" Revell, President, Revell Gmup Intemational,

Inc.

Hubert Williams, President, The Police Foundation

August 24-26, 1998 Herman W. Young, National Sheriff.>' Association

Clyde Davis, National Secretmy, National Association of

Civilian Oversigltt of Law Enforcemelll

A.N. "Bobby" Moser, Jr., Executive Directot; National

Sheriffs' Association

Robert Stewart, Executive Directm; National Associa- 175 lion of Black Law Et!f'orcement Executives

Samuel Walker, Kiewit Professor of Criminal Justice,

University of Nebraska at Omaha

Richard W. Myers, President, Police Futurists llllema-

tiona/

David B. Kopel, Research Directot; Independence

Institute

Gregory T. Nojeim, Legislative Counsel, American Civil

Liberties Union

Bob A. Ricks, Commissionet; Oklahoma Department of

Public Safety

William L. Tafoya, Director of Research and Training,

Police Fwurists Intemational Michael N. Becar, 2nd Vice President, Intemational

Association of Directors of Law Enforcement Standards

and Training

Ted Deeds, Chief Operating Ojfice1; Law Ellforcement

Alliance of America, Inc.

James J. Fotis, Executive Direc/01; Law Eliforcement

Alliance of America, Inc.

Robert Goldstock, Chairman, American Bar Associa-

tion

Gerald B. Lefcourt, Past President, National Associa-

lion of Criminal Defense Lawyers

October 5, 1998 Richard L. Canas, Direct01; National Drug Intelligence

Cell/e1; U.S. Department of Justice 176 Louis P. Cannon, Presidell!, Frate mal Order of Police,

DC Lodge#l

Richard Woosley, Park Range1; National Park Sen•ice

Clarence Thompkins, Departmell/ of Defense Police

Charles Stemple, Fraternal Order of Police

Peter Ward, Fratemal Order of Police

Tanya K. Metaskas, Executive Direct01; Institute for

Legislative Action, National Rifle Association

Charles Rossotti, Commissione1; Internal Revenue

November 12-13, 1998 Michael R. Bromwich, Inspector General, U.S. Depart-

ment of Justice Floyd Clarke, Vice President of Cmporate Compliance,

McAndrews and Forbes, Inc. (former Deputy Directm;

Federal Bureau of Investigation)

Richard Gallo, Federal Law Enforcement Officers

Association

Raymond Kelly, Commissione1; U.S. Customs Sen1ice

Chuck Wexler, Executive Directm; Police Executive

Research Forum

Robert Lummey, Police Executive Research Forum

(former Chief of Police, Peal, Winnipeg, and Edmolllon,

Canada)

Thomas Constantine, Administratm; Drug El]f'orcemelll

Administration, U.S. Department of Justice 177 Kathleen Hawke Sawyer, Directm; U.S. Bureau of

Prisons, U.S. Department of Justice

John Snyder, Director of Public Affairs, National

Association of Chi~fs of Police, Citizens Committee for

Right to Keep and Bear Anns

December 1-2, 1998 John Imhoff, Directm; United States National Central

Bureau of INTERPOL

W. Ralph Basham, Directm; Federal Law El]/'orcemelll

Training Celller

John Dooher, Senior Associate, Federal Law Enforce-

melll Training Center

Louis J, Freeh, Directm; Federal Bureau

Eduardo Gonzalez, Directm; U.S. Marshals Service

Ray Havens, Deputy Directm; U.S. Marshals Sen•ice Joseph Briggs, Management and Budgeting Division,

U.S. Marshals Sen1ice

Panel of U.S. Attorneys

Denise O'Donnell, Western District of New York

Mark Calloway, Western District of North Carolina

Paul Warner, District of Utah

Panel from the Department of the Interior

John Berry, Assistant Secretwy, Policy, Management,

and Budget

John Gannon, Office of Management Risk and Public

Safety

Chris Andress, Chief; Ranger Activities Division,

178 National Park Sen1ice

Robert Langston, Chief United States Park Police

Thomas Riley, Deputy Chief Division of Law Enforce-

ment, U.S. Fish and Wildlife Se1vice

January 14-15, 1999 F.T. Davis, Jr., Esquire, Long, Aldridge, & Nonnan,

L.L.P.

David Nichols, Criminal Investigatm; Office of Law

Eilforcement Sen1ices, Bureau of indian Affairs, U.S.

Department of the Interior

Milton E. Nix, Jr., Directm; Georgia Bureau of Investi-

galion

James E. Johnson, Under Secretmy for Enforcement,

U.S. Department of the TreaSlll)'

John W. Magaw, Directm; Bureau of Alcohol, Tobacco,

and Firearms William Baity, Acting Directm; Financial Crimes

Ellf'orcemellf Nelll'ork

Ted Brown, Assistant Commissione1; Imernal Revenue

Sen,ice

Panel from the Department of the Interior

Walter Johnson, Chief, Bureau of Land Management

John Gannon, Office of Managemem Risk and Public

Safety

Dennis McLane, Deputy Chief; National Law Enforce-

ment

Irving Tubbs, Special Agent, Office of Management Risk

and Public Safety

Thomas Riley, Deputy Chi~f; Division of Law Ellf'orce- 179 ment, U.S. Department of Fish and Wildlife

February 1 0, 1999 James Calder, Associate Professor of Criminal Justice,

University of Texas at San Antonio

William F. Wasley, Directm; Law Enforcement Investi-

gations, U.S. Forest Service, U.S. Department ofAgricu/-

ture

March 15 & 17, 1999 Norman J. Rabkin, Directm; Administration of Justice

Issues, U.S. General Accounting Office

Weldon McPhail, Assistant Directm; U.S. General

Accoullting Office

Doris Meissner, Commissione1; Immigration and Natu-

ralization Service April12, 1999 Honorable Richard Clarke, National Coordinator for

Security, Infrastructure Protection, and Counter-Terror-

ism

June 29, 1999 Jonathan M. Winer, Deputy Assistant Secretmy for

International Narcotics and Law Enforcemem Affairs,

U.S. Departmellt of State

Michael Sheehan, Acting Coordinator for

Coullterterrorism, U.S. Department of State

180 APPENDIX F. EXPERT PAPERS AND ADVISORS

A Brief Histmy of Federal Law Enforcement

Prepared for the Commission on the Advancement of Federal Law Enforcement

by Stanley E. Morris, April 1999.

A Question of Power: United States Marshals Service

By FrederickS. Calhoun (unpublished manuscript)

Analysis of Sun,ey Respondents' Answers to Questions 181 Prepared for the Commission on the Advancement of Federal Law Enforcement

by Don Witham, Ph.D., March 1999.

Opinions about Federal Law Ellforcement: A S1111'ey Research Report

Prepared for the Commission on the Advancement of Federal Law Enforcement

by QS&A Research, March 1999.

Report to the Commission on the Advancement of Federal Law Enforcement

Prepared for the Commission on the Advancement of Federal Law Enforcement

by Frank J. Cilluffo and Michael Paul Palaschak, March 1999.

Extemal Oversight of Federal Law Enforcement Agencies: A Proposal

Prepared for the Commission on the Advancement of Federal Law Enforcement

by Samuel Wallcer, Ph.D. President Herbert Hoover and the Origins of Federal Crime Comrol Policy

Prepared for the Commission on the Advancement of Federal Law Enforcement

by James D. Calder, Ph.D., Associate Professor of Criminal Justice, University of

Texas at San Antonio, February 1999.

Advisors

Cornelius J. Behan, Major Cities Chiefs Association, Salt Lake City, Utah; and

retired Chief of Baltimore County Police, Towson, Maryland

Russell J. Bruemmer, Partner, Wilmer Cutler & Pickering; former Special Assistant

to the Director of the FBI; and former General Counsel, Central Intelligence

Agency, Washington, DC

Maurice J. Cullinane, retired Chief of Metropolitan Police, Washington, DC

182 APPENDIX G. PERSONNEl AUTHORIZED TO CARRY FIREARMS IN 14 FEDERAl AGENCIES

196 Bureau of Land Management 208 1996 LI.~c::'l 1998 Bureau of Indian Affairs Source: Commission on the Advancement of Federal Law 601 Enforcement (Feb. 20, 1999), "Collated Response of Fourteen Federal Law Enforcement Agencies to the U.S. Forest 614 Survey Questionnaire for Fedeml Policing, Law Enforcement, and Investiga 1,596 tive Agencies," Question No. 5; and Brian A. Reaves, 1,543 Ph.D., U.S. Department of Justice, Office of Justice Progrums {Dec. 12, 1997), Bureau of Alcohol, Bureau of Justice Stati.1·tir..w 183 Tobacco, and Firearms Bulletin, Washington, DC: U.S. Government Printing 2,924 Office. Note: BOP figure U.S. Marshals includes Correctlonal Officers ( 12,600) and Olhcr BOP > CJ employees qualified and certified to carry firearms. "~ Internal Revenue 00:

Drug Enforcement Administration

Federal Bureau of 11,710 Investigation 10,389

U.S. Customs 11,910

Immigration and 17,573 Naturalization Service 12,403

Bureau of 28,390

0 5,000 10,000 15,000 20,000 25,000 30,000 Number of Personnel Authorized to Carry Firearms APPENDIX H. ACKNOWLEDGMENTS

The Commission wishes to express its gratitude to the many individuals and organi-

zations whose assistance made this report possible.

First, the Commission would like to acknowledge the individuals who took the

time to share their views-both in writing and in the form of testimony during

Commission meetings. Their contributions were powerful. Their insights compel-

ling. Second, we are indebted to the personnel of each of the 37 agencies that

responded to the Commission survey. Their responses informed the Commission's

investigation in many ways. Third, the Commission would like to cite the significant

184 assistance it received from the authors of several papers commissioned for its use. Access to these documents made the Commission's task easier.

Unfortunately, a few persons, including some heads of Federal law enforcement

agencies, declined the Commission's invitation to testify, thus depriving the Commis-

sian-as well as Congress and the American public-of valuable and useful informa-

tion for this report.

The Commission particularly appreciates the contributions of the capable and

hard-working staff that helped guide its work. Commission Executive Director Lee

Colwell's experience as Director of the Criminal Justice Institute and the National

Center for Rural Law Enforcement, University of Arkansas System, and as the former

Associate Director of the Federal Bureau of Investigations was invaluable. Michael

Shaheen, Chief Counsel and Deputy Executive Director, continuously helped to

shape Commission thinking. Richard Fera, who turned into a one-man research

department for the Commission, identified reference materials, organized materials,

and responded to innumerable Commission requests, tirelessly. Our support staff never failed us. Carmelita Pratt (Administrative Officer) provided superb administrative and logistical support for the Commission, and

Jacqueline Mitchell (Executive Assistant) ensured that the Commission got from place to place, on time, and with the right agenda.

James Harvey of Seattle worked with the Commission to coalesce research materials into drafts of the report. The Commission is indebted to Joseph Foote who provided invaluable assistance in preparing the report for publication. He was ably assisted by Claude 0. Norcott of Norcott & Company.

185

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